Court of Appeal Decision of the Week

Can you Appeal a Leave to Appeal Decision?

Case: Broadband Communications North Inc v I-Netlink Incorporated, 2018 MBCA 116 (CanLII)

Keywords: Leave to Appeal; The Arbitration Act, CCSM c A120; Motion for an Extension of Time

Synopsis:

The parties seek leave to appeal the final award of a single Arbitrator pursuant to s. 44(2) of The Arbitration Act, CCSM c A120. Leave is granted for some questions, but not for all.

The Applicant, Broadband Communications North Inc., asks for an extension of time to file a notice of appeal of the decision denying leave on certain questions raised in its initial application for leave to appeal.

The Court of Appeal dismisses the Applicant’s motion.

Importance:

What happens when leave to appeal is granted, but not on all the questions you/your client wanted? In this case, the Applicant brought a motion for an extension of time to file a notice of appeal. Citing Bohemier v Bohemier, 2001 MBCA 161 (CanLII) at para. 2, the Court of Appeal noted that parties seeking an extension must show the following:

  1. a continuous intention to appeal from a time within which the appeal should have been commenced;
  2. a reasonable explanation for the delay;
  3. arguable grounds of appeal; and
  4. that any prejudice suffered by the other party can be addressed. (See para. 4).

The Court (single judge, Pfuetzner J.A.) focused the analysis on the third criterion, arguable grounds of appeal. For the Court of Appeal, the principle that “no appeal generally lies from a decision denying or granting leave to appeal” posed a significant hurdle. (See para. 6). That being said, the Court noted an “exception to the general rule” in circumstances where the decision-maker mistakenly declines jurisdiction. (See para. 8).

To this point, the Applicant made two arguments. First, that pursuant to ss. 25, 26, and 29 of The Court of Appeal Act, CCSM c C240, the Court of Appeal has jurisdiction to review such judgments – that the jurisdiction of the Court cannot be removed “…except by clear and unequivocal statutory language”. (See para. 9). Second, that there is a further exception to the general rule (that no appeal lies from a denial of leave to appeal) in circumstances where the decision-maker errs on a matter of “essential principle”. (See para. 10).

The Court of Appeal was not persuaded by either of these arguments. The Court found the Applicant’s first argument would frustrate the purpose of the The Arbitration Act, CCSM c A120:

The purpose of section 44(2) of the Act is to prevent an appeal unless the Court of Queen’s Bench grants leave (see Hillmond Investments Ltd v Canadian Imperial Bank of Commerce (1996), 1996 CanLII 413 (ON CA), 135 DLR (4th) 471 (Ont CA)).  Here, the purpose of that section would clearly be defeated if this Court entertained an appeal where the Court of Queen’s Bench considered the application on its merits, did not mistakenly decline jurisdiction and did not grant leave. (See para. 11).

Further, with respect to the Applicant’s assertion that there was an additional exception to the general rule, the Court of Appeal declined to find such an exception:

…I am not persuaded that a demonstrable error on a matter of essential principle is an exception to the general rule that no appeal under the Act will lie from the decision of a Queen’s Bench judge granting or denying leave to appeal.  The decisions relied on by the applicant to establish this exception were cases where a full panel of this Court considered the decision of a single judge of this Court in chambers to grant or deny leave under other statutory regimes. (See para. 13).

In any case, the Court of Appeal found no errors with the decision granting leave on two questions of law but denying leave on those issues which he determined had failed to raise questions of law. (See para. 14). In other words, the Court of Appeal was not convinced it had jurisdiction to hear an appeal of the decision, but even if it had jurisdiction, the Court found there were not arguable grounds of appeal. (See para. 16).

Counsel for the Applicant: Colin MacArthur, Q.C. (MLT Aikins LLP, Winnipeg)

Counsel for the Respondent: Gordon McKinnon and Meghan Ross (Thompson Dorfman Sweatman LLP, Winnipeg)

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Posted: Wednesday, November 21, 2018