Case: Ontario College of Teachers v. Bouragba, 2021 ONCA 508

Keywords: Jurisdiction of the Court of Appeal; anti-SLAPP motion; case management master; Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(d), 6(2)

Synopsis:

The Ontario College of Teachers (“College”) starts a defamation action against Mr. Ahmed Bouragba. Mr. Bouragba brings an anti-SLAPP[1] motion pursuant to s. 137.1 of the Courts of Justice Act to dismiss the College’s action. His motion is dismissed. However, the Court of Appeal subsequently allows his appeal, sending the motion back to Superior Court. The College then seeks Leave pursuant to Rule. 23.01 of the Rules of Civil Procedure to discontinue its own action – “with prejudice to the College.” Mr. Bouragba opposes the motion. (See para. 5).

Master Brott makes an Order discontinuing the College’s defamation action and ordering “that the discontinuance shall be deemed a bar to any subsequent action or actions brought by the Plaintiff arising from the same causes of action asserted within this action.” (See para. 5; Ontario College of Teachers v. Bouragba, 2021 ONSC 2204 (CanLII) at para. 36).

Mr. Bouragba files an appeal from the Order in the Court of Appeal and the Divisional Court. He then brings a motion to transfer his Divisional Court appeal to the Court of Appeal so they can be heard together. The Court of Appeal finds Mr. Bouragba fails to demonstrate that an appeal of Master Brott’s Order “lies to” the Court of Appeal for the purpose of the Courts of Justice Act, s. 6(2). For the Court of Appeal, the Divisional Court is the “proper court” to consider this appeal.

Importance:

Section 6(2) of the Courts of Justice Act provides that the Court of Appeal has jurisdiction to hear and determine appeals that lie to the Divisional Court if “an appeal in the same proceeding lies to and is taken to the Court of Appeal”. Mr. Bouragba filed an appeal in Divisional Court. The only question herein was whether his appeal against Master Brott’s Order is one which “lies to” the Court of Appeal. That meant bringing his appeal within the parameters of s. 6(1)(d) of the Courts of Justice Act.

This case is important because the Court of Appeal provided significant guidance on the interpretation of s. 6(1)(d), effectively limiting its jurisdiction to hear an appeal from the order of a case management master in the context of Ontario’s anti-SLAPP regime.

Section 6(1)(d) of the Courts of Justice Act provides that “an appeal lies to the Court of Appeal from…(d) an order made under section 137.1.” There is no further limiting instruction on the face of the Courts of Justice Act. In this appeal, Mr. Bouragba argued that Master Brott’s Order fits the language of the section. (See para. 6).

The Court of Appeal clarified that s. 6(1)(d) only applies to an order made by a “judge” of the Superior Court of Justice. According to the Court of Appeal, since Master Brott is not a judge, “her Order was not an order made by a ‘judge’, within the meaning of CJA s. 137.1, and therefore not ‘an order made under section 137.1’ within the meaning of CJA s. 6(1)(d).” (See para. 8).

In support of this interpretation, the Court of Appeal cited its prior decision in Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599. In that case, the Court observed “the significance of s. 137.1’s use of the word ‘judge’ instead of ‘court’, in respect of the authority of a master.” (See para. 8).

What are the implications of this decision? For Mr. Bouragba, it may mean continuing his appeal from Master Brott’s Order in the Divisional Court, pursuant to s. 19(1)(c) of the Courts of Justice Act. (See para. 10). Alternatively, might Leave be sought to the Supreme Court of Canada? Qui vivra, verra. In the meantime, for litigants seeking to appeal against an order or decision of a case management master to the Court of Appeal, does this case offer an important (if temporary) roadmap?

Counsel for the Moving Party: Ahmed Bouragba (acting in person)

Counsel for the Responding Party: Charlotte-Anne Malischewski (McCarthy Tetrault, Toronto)

[1] SLAPP is an acronym which refers to “strategic lawsuits against public participation”. An “anti-SLAPP motion” refers to a motion brought pursuant to s. 137.1 of the Courts of Justice Act, a section governing motions to dismiss proceedings that limit public debate.

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