


COURT OF APPEAL FOR ONTARIO

CITATION:
Fontaine v. Canada
    (Attorney General), 2012 ONCA 206

DATE: 20120327

DOCKET: M41060  M41077 C54782

Watt J.A.

BETWEEN

LARRY PHILIP FONTAINE in his
    personal capacity and in his capacity as the Executor of the estate of Agnes
    Mary Fontaine, deceased, MICHELLINE AMMAQ, PERCY ARCHIE, CHARLES BAXTER SR.,
    ELIJAH BAXTER, EVELYN BAXTER, DONALD BELCOURT, NORA BERNARD, JOHN BOSUM, JANET
    BREWSTER, RHONDA BUFFALO, ERNESTINE CAIBAIOSAI-GIDMARK, MICHAEL CARPAN, BRENDA
    CYR, DEANNA CYR, MALCOLM DAWSON, ANN DENE, BENNY DOCTOR, LUCY DOCTOR, JAMES
    FONTAINE in his personal capacity and in his capacity as the Executor of the
    Estate of Agnes Mary Fontaine, deceased, VINCENT BRADLEY FONTAINE, DANA EVA
    MARIE FRANCEY, PEGGY GOOD, FRED KELLY, ROSEMARIE KUPTANA, ELIZABETH KUSIAK,
    THERESA LAROCQUE, JANE McCULLUM, CORNELIUS McCOMBER, VERONICA MARTEN, STANLEY
    THOMAS NEPETAYPO, FLORA NORTHWEST, NORMAN PAUCHEY, CAMBLE QUATELL, ALVIN BARNEY
    SAULTEAUX, CHRISTINE SEMPLE, DENNIS SMOKEYDAY, KENNETH SPARVIER, EDWARD
    TAPIATIC, HELEN WINDERMAN and ADRIAN YELLOWKNEE

Plaintiffs (Respondents)

and

THE ATTORNEY GENERAL OF CANADA,
    THE PRESBYTERIAN CHURCH IN CANADA, THE GENERAL SYNOD OF THE ANGLICAN CHURCH OF
    CANADA, THE UNITED CHURCH OF CANADA, THE BOARD OF HOME MISSIONS OF THE UNITED
    CHURCH OF CANADA, THE WOMENS MISSIONARY SOCIETY OF THE PRESBYTERIAN CHURCH,
    THE BAPTIST CHURCH IN CANADA, BOARD OF HOME MISSIONS AND SOCIAL SERVICES OF THE
    PRESBYTERIAN CHURCH IN BAY, THE CANADA IMPACT NORTH MINISTRIES OF THE COMPANY
    FOR THE PROPAGATION OF THE GOSPEL IN NEW ENGLAND (also known as THE NEW ENGLAND
    COMPANY), THE DIOCESE OF SASKATCHEWAN, THE DIOCESE OF THE SYNOD OF CARIBOO, THE
    FOREIGN MISSION OF THE PRESBYTERIAN CHURCH IN CANADA, THE INCORPORATED SYNOD OF
    THE DIOCESE OF HURON, THE METHODISTCHURCH OF CANADA, THE MISSIONARY SOCIETY OF
    THE ANGLICAN CHURCH OF CANADA, THE MISSIONARY SOCIETY OF THE METHODIST CHURCH
    OF CANADA (ALSO KNOWN AS THE METHODIST MISSIONARY SOCIETY OF CANADA), THE
    INCORPORATED SYNOD OF THE DIOCESE OF ALGOMA, THE SYNOD OF THE ANGLICAN CHURCH
    OF THE DIOCESE OF QUEBEC, THE SYNOD OF THE DIOCESE OF ATHBASCA, THE SYNOD OF
    THE DIOCESE OF BRANDON, THE ANGLICAN SYNOD OF THE DIOCESE OF BRITISH COLUMBIA,
    THE SYNOD OF THE DIOCESE OF CALGARY, THE SYNOD OF THE DIOCESE OF KEEWATIN, THE
    SYNOD OF THE DIOCESE OF QUAPPELLE, THE SYNOD OF THE DIOCESE OF NEW
    WESTMINISTER,  THE 2 SYNOD OF THE DIOCESE OF YUKON, THE TRUSTEE BOARD OF THE
    PRESBYTERIAN CHURCH IN CANADA, THE BOARD OF HOME MISSIONS AND SOCIAL SERVICE OF
    THE PRESBYTERIAN CHURCH OF CANADA, THE WOMENS MISSIONARY SOCIETY OF THE UNITED
    CHURCH OF CANADA, SISTERS OF CHARITY, A BODY CORPORATE ALSO KNOWN AS SISTERS OF
    CHARITY OF ST. VINCENT DE PAUL, HALIFAX, ALSO KNOWN AS SISTERS OF CHARITY
    HALIFAX, ROMAN CATHOLIC EPISCOPAL CORPORATION OF HALIFAX, LES SOEURS DE NOTRE
    DAME-AUXILIATRICE, LES SOEURS DE ST.
FRANCOIS DASSISE,
    INSITUT DES SOEURS DU BON CONSEIL, LES SOEURS DE SAINT-JOSEPH DE
    SAINT-HYANCITHE, LES SOEURS DE JESUSMARIE, LES SOEURS DE LASSOMPTION DE LA
    SAINTE VIERGE, LES SOEURS DE LASSOMPTION DE LA SAINT VIERGE DE LALBERTA, LES
    SOEURS DE LA CHARITE DE ST.-HYACINTHE, LES OEUVRES OBLATES DE LONTARIO, LES
    RESIDENCES OBLATES DU QUEBEC, LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE
    LA BAIE JAMES (THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF JAMES BAY), THE
    CATHOLIC DIOCESE OF MOOSONEE, SOEURS GRISES DE MONTRÉAL/GREY NUNS OF MONTREAL,
    SISTERS OF CHARITY (GREY NUNS) OF ALBERTA, LES SOEURS DE LA CHARITÉ DES T.N.O.,
    HOTEL-DIEU DE NICOLET, THE GREY NUNS OF MANITOBA INC.-LES SOEURS GRISES DU
    MANITOBA INC., LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE LA BAIE DHUDSON
     THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF HUDSONS BAY, MISSIONARY OBLATES
     GRANDIN PROVINCE, LES OBLATS DE MARIE IMMACULEE DU MANITOBA, THE
    ARCHIEPISCOPAL CORPORATION OF REGINA, THE SISTERS OF THE PRESENTATION, THE
    SISTERS OF ST.
JOSEPH OF SAULT ST. MARIE, SISTERS OF
    CHARITY OF OTTAWA, OBLATES OF MARY IMMACULATE ST. PETERS PROVINCE, THE
    SISTERS OF SAINT ANN, SISTERS OF INSTRUCTION OF THE CHILD JESUS, THE BENEDICTINE
    SISTERS OF MT. ANGEL OREGON, LES PERES MONTFORTAINS, THE ROMAN CATHOLIC BISHOP
    OF KAMLOOPS CORPORATION SOLE, THE BISHOP OF VICTORIA, CORPORATION SOLE, THE
    ROMAN CATHOLIC BISHOP OF NELSON, CORPORATION SOLE, ORDER OF THE OBLATES OF MARY
    IMMACULATE IN THE PROVINCE OF BRITISH COLUMBIA, THE SISTERS OF CHARITY OF
    PROVIDENCE OF WESTERN CANADA, LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE
    GROUARD, ROMAN CATHOLIC EPISCOPAL CORPORATION OF KEEWATIN, LA CORPORATION
    ARCHIÉPISCOPALE CATHOLIQUE ROMAINE DE ST. BONIFACE, LES MISSIONNAIRES OBLATES
    SISTERS DE ST. BONIFACE-THE MISSIONARY OBLATES SISTERS OF ST. BONIFACE, ROMAN
    CATHOLIC ARCHIEPISCOPAL CORPORATION OF WINNIPEG, LA CORPORATION EPISCOPALE
    CATHOLIQUE ROMAINE DE PRINCE ALBERT, THE ROMAN CATHOLIC BISHOP OF THUNDER BAY,
    IMMACULATE HEART COMMUNITY OF LOS ANGELES CA, ARCHDIOCESE OF VANCOUVER  THE
    ROMAN CATHOLIC ARCHBISHOP OF VANCOUVER, ROMAN CATHOLIC DIOCESE OF WHITEHORSE,
    THE CATHOLIC EPISCOPALE CORPORATION OF MACKENZIEFORT SMITH, THE ROMAN CATHOLIC
    EPISCOPAL CORPORATION OF PRINCE RUPERT, EPISCOPAL CORPORATION OF SASKATOON, OMI
    LACOMBE CANADA INC. and MT. ANGEL ABBEY INC.

Defendants (Appellants)

Sheila Read, for the appellant, moving party

Susan Vella, for the respondents Windigo First Nations
    Council and Nishnawbe Aski Nation

Heard: March 2, 2012

Motion and cross-motion arising out of order of Chief
    Justice Winkler adding Stirland Lake and Cristal Lake high schools to Schedule
    F under the Indian Residential Schools Settlement Agreement on August 16,
    2011.

Watt J.A.:

[1]

This motion and cross-motion originate in an order made by the Chief
    Justice of Ontario adding two new residential schools to a schedule under the Indian
    Residential Schools Settlement Agreement (IRSSA).  An appeal from that order is
    listed for argument before a panel of this Court on May 16, 2012.

[2]

The effect of the order under appeal is to permit former students of the
    added residential schools to become eligible to apply for two types of benefits
    payable under and in accordance with the terms of IRSSA.

[3]

The reasons that follow explain why I dismiss both the motion and
    cross-motion, but order that the hearing of the appeal be expedited to take
    place in April, 2012.

The Procedural Background

[4]

IRSSA represents the resolution of a national class action proceeding.
    The Government of Canada, various religious institutions and the class members,
    First Nations people who attended Indian Residential Schools across Canada,
    agreed to dispute resolution schemes authorizing payment of various benefits
    including compensation, for former students with validated claims.

[5]

About five years ago, nine provincial and territorial superior courts
    across Canada issued orders approving a pan-Canadian settlement in the
    litigation arising out of the joint operation of these residential schools by
    the Government of Canada. The court-approved settlement identified over 130
    residential schools and other institutions as approved and listed under two
    schedules, E and F, of the Agreement.

The Authority to Add Schools

[6]

The IRSSA permits applications to add further residential schools and
    other institutions to Schedule F of the Agreement and describes the procedure
    to be followed to do so.

[7]

In early October 2007, Windigo First Nations Council (Windigo) and
    Nishnawbe Aski Nation (NAN) submitted a request to the Government of Canada to
    add Stirland Lake (Stirland) and Cristal Lake (Cristal) high schools. In late
    May 2008, Canada rejected the request.

[8]

In December 2008, Windigo and NAN applied to Chief Justice Winkler under
    Article 12 of IRSSA for an order adding Stirland Lake and Cristal Lake to
    schedule F of the Agreement.

The Decision Under Appeal

[9]

On August 16, 2011, the Chief Justice released his Reasons for
    Decision.  He concluded that Stirland and Cristal satisfied the requirements of
    Article 12 of IRSSA and directed that both institutions be added to Schedule
    F of the Agreement.

[10]

The
    addition of Stirland and Cristal to Schedule in F of IRSSA entitles former
    students of both institutions to apply for benefits under the Agreement.  The
    Chief Justice directed the parties to meet with Court Counsel for the purposes
    of settling the terms of the order that will flow from these reasons.

The Available Benefits

[11]

Under the
    Agreement, former residents of institutions listed in Schedule F may apply
    for and be entitled to two types of benefits provided they satisfy the relevant
    criteria.

[12]

The Common
    Experience Payment (CEP) is available to former students of listed institutions
    solely because they were residents of the institution. The amount of
    compensation to which a former resident is entitled depends on the number of
    years of residence. Eligibility is subject to validation in a documents-based
    hearing. The CEP benefit is paid out of a trust fund.

[13]

The second
    benefit, the Independent Appeal Process (IAP), requires former students of
    listed institutions to complete a detailed application and collect and file
    mandatory records. The IAP also involves an in-person hearing. The applicant
    testifies before an adjudicator. Typically, counsel appears for the
    Government.

[14]

Compensation
    under the CEP provides redress for the fact that the former students were put
    into an institutionalized residential schooling system typically operated as a
    joint venture by the Government of Canada and religious or other institutions.

[15]

The IAP
    provides redress for validated claims of physical and sexual abuse and other
    wrongful conduct as defined in the enabling provisions.  As a general rule, IAP
    awards exceed those under the CEP.

[16]

Despite
    their differences, the CEP and IAP share common features. Each requires an
    application. Each includes temporal restrictions and compensatory limits. Each
    demands satisfaction of various criteria.  And each imposes an onus on the
    applicant. Neither issues as of right.

The Formal Order

[17]

The formal
    order of November 16, 2011, refers to the Reasons for Decision of August 16,
    2011, declares that both Stirland and Cristal satisfy the applicable
    requirements of IRSSA and directs that both institutions be added forthwith
    to Schedule F of IRSSA. The order establishes a period of six months within
    which former residents can apply for CEP, attaches relevant notices, and
    declares that supplementary orders may issue about the documents necessary to
    verify the attendance of residents/students at the added institutions.

[18]

The formal
    order also directed the parties to deliver their submissions on costs by
    specified dates.

The Grounds of Appeal

[19]

In its
    amended Notice of Appeal of December 16, 2011, the Attorney General alleges
    three errors:

1.       The judge erred in law by concluding that the
    Institutions proposed by the Applicant met the test prescribed by Article 12.01
    of the Indian Residential Schools Settlement Agreement;

2.       The judge committed a palpable and overriding error by
    failing to consider relevant evidence that could have been determinative of the
    issue;

3.       The judge committed a palpable and overriding error by
    drawing wrong inferences from factual conclusions.

The Motion

[20]

The
    principal remedy the Attorney General seeks on its motion is a stay of the
    order under appeal.

The Positions of the Parties

[21]

For the
    Attorney General, Ms. Read advances two alternative grounds upon which she
    submits the order under appeal is or should be stayed pending final disposition
    of the appeal.

[22]

First, Ms.
    Read invokes rule 63.01(1). She says that the order under appeal contains a
    provision for the payment of money, thus delivery of the notice of appeal
    automatically stayed the provision. The order added Stirland and Cristal to
    schedule F of IRSSA, thus made them residential schools or institutions for
    the purposes of the Agreement. Once added,
residents/
students
at the schools qualified for CEP. Under Article 5.01 of
IRSSA,
    the submission continues, the trustee of the Fund must make a payment to every
    former resident/student who resided at either school prior to December 31,
    1997, was alive on May 30, 2005, and submitted an application for CEP. Thus,
    the order provides for the payment of money and is automatically stayed by
    delivery of the notice of appeal.

[23]

Second,
    and in the alternative, Ms. Read contends that the Attorney General has satisfied
    the requirements imposed by rule 63.02(1)(b) for entry of a stay until
    disposition of the appeal.

[24]

Ms. Read
    says that the appeal raises a serious legal issue, the interpretation of Article
    12 of IRSSA. This issue has never been considered by an appellate court. The
    legal error, the failure to consider both parts of the test for inclusion of a
    residential school or institution in Schedule F, was compounded by palpable
    and overriding factual errors that consisted of failure to consider relevant
    evidence and drawing unsupported inferences.  Ms. Read reminds that the
    threshold to establish this requirement is low and is met by a demonstration
    that the appeal is neither frivolous nor vexatious.

[25]

Ms. Read
    points out that failure to enter a stay will cause irreparable harm to the
    appellant. Once made, CEP payments will be almost impossible to recover if the
    appeal is successful. Failure to recover unauthorized payments will prejudice
    the other CEP claimants and residual beneficiaries of the remainder of the
    trust fund.

[26]

According
    to the appellant, the balance of convenience tilts in favour of entry of the
    stay. The only prejudice to former residents/students of Stirland and Cristal
    if the schools were properly added to Schedule F is that their CEP payments
    will be delayed. An expedited hearing of the appeal will reduce any delay to a
    minimum.

[27]

For the
    respondent, Ms. Vella says that rule 63.01(1) is of no avail to the appellant.
    This order contains no provision for the payment of money. She submits that
    rule 63.01(1) has been narrowly interpreted, confined to orders that create a
    fixed debt obligation. The obligation must be actual, not prospective or
    contingent. This order simply declared entitlement, said another way, created
    an opportunity for members of a certain class, former residents/students at
    Stirland and Cristal, to participate in compensation schemes in accordance with
    and upon satisfaction of their requirements.

[28]

Ms. Vella
    urges rejection of the appellants claim for a discretionary stay under rule
    63.02(1)(b). She acknowledges that the appeal cannot be characterized as
    frivolous or vexatious and that compliance with the order would cause
    irreparable harm to non-Stirland and non-Cristal class members who may be
    entitled to participate in any surplus in the CEP Trust Fund.  She points out
    that refusal of the stay, as the appellant concedes, causes no harm to IAP
    claimants.

[29]

Ms. Vella
    centres her opposition to a discretionary stay on the balance of convenience
    factor.  The judgment is presumptively correct.  To stay its operation works
    substantial prejudice against residents/students of Stirland and Cristal
    because the period within which they could apply for compensation under CEP and
    IAP would be so short as to render their entitlement more illusory than real.

The Governing Principles

[30]

The
    principles that govern motions for stays under rules 63.01(1) and 63.02(1) are
    familiar.  Brief reference to some of their features will suffice.

[31]

Courts
    have interpreted rule 63.01(1) narrowly. To qualify as an order for the
    payment of money under the rule, the order or applicable term must create a
    fixed debt obligation:
Longley v. Canada (Attorney General)
(2007),
    223 OAC 102 (Chrs), at para. 11. The debt obligation created must be actual,
    not prospective or contingent on some other determination or satisfaction of
    various conditions precedent:
Longley
,
at para. 12.

[32]

Where a
    party invokes rule 63.02(1) to stay an order pending disposition of an appeal,
    courts apply a three-stage test to determine whether a stay should be entered.
    Stated in short form, the components of the test are:

·

serious question

·

irreparable harm

·

balance of convenience

See,
RJR-MacDonald Inc. v. Canada (Attorney
    General)
, [1994] 1 S.C.R. 311, at p. 334.

[33]

The first component, whether there is a serious question to
    be determined on the appeal, requires a preliminary assessment of the merits of
    the appeal:
RJR-MacDonald Inc.
,

at p. 334.

[34]

The preliminary assessment of the merits begins with
    a presumption of correctness of the decision under appeal:
Ogden
    Entertainment Services v. United Steelworkers of America, Local 440
(1998), 38 O.R. (3d) 448 (C.A.), at p. 450. The onus
    is on the moving party to establish a case for a stay:
International
    Corona Resources Ltd. v. Lac Minerals Ltd.
(1986) 21 C.P.C. (2d) 252 (Ont. C.A.- Chrs), at p. 255. The threshold
    to be met in connection with this first component of the test is a modest one:
Horsefield v. Ontario (Registrar of Motor Vehicles)
(1997), 35 O.R. (3d) 304 (C.A.  Chrs), at p. 311;
RJR-MacDonald
    Inc.
, at p. 337. The moving party must
    demonstrate that the appeal is not frivolous or vexatious:
Longley
, at para. 16;
International Corona
, at p. 255.

[35]

The irreparable harm component has to do with the nature,
    not the magnitude of the harm:
RJR-MacDonald Inc.
, at p. 341. It refers to harm that cannot be
    quantified in monetary terms or that cannot be cured, for example, because one
    party cannot collect damages from the other:
RJR-MacDonald Inc.
,

at

p. 341.

[36]

The balance of
    convenience constituent of the test involves a determination of which of the
    parties will suffer the greater harm from the granting or refusal of the stay
    pending the disposition of the appeal on the merits:
RJR-MacDonald
    Inc.
, at p. 342. The factors relevant
    for consideration in determining where the balance of convenience settles
    varies from one case to the next:
RJR-MacDonald Inc.
, at pp. 342-343.

The Principles Applied

[37]

Rule
    63.01(1) does not provide for an automatic stay at the order under appeal and I
    would not summon rule 63.02(1)(b) as a discretionary substitute.

[38]

We confine
    rule 63.01(1), perhaps because of its mandatory effect, to orders that fall
    plainly within its compass. No term of the order in this case creates a fixed debt
    obligation.

[39]

The
    principal relief ordered was declaratory. The Chief Justice considered whether
    two residential schools/institutions satisfied the requirements of IRSSA for
    inclusion in Schedule F.  He decided that both Stirland and Cristal met those
    requirements. He ordered that both schools be added to the schedule.

[40]

The
    addition of Stirland and Cristal to Schedule F did not create any fixed debt
    obligation for the appellant. The addition entitles residents/students of
    Stirland and Cristal to apply for compensation under CEP and IAP. To obtain
    compensation, each former resident/student of the added institution must meet
    the eligibility requirements imposed under IRSSA. It is then, and only then,
    that the appellant is required to pay compensation in accordance with the
    applicable scheme. The obligation is not fixed by any term of the order, rather
    prospective and contingent on satisfaction of the relevant criteria.

[41]

In the
    absence of a term in the order under appeal that creates a fixed debt obligation,
    the automatic stay for which rule 63.01(1) provides is not engaged by delivery
    of the notice of appeal.

[42]

The
    discretionary stay authority rule 63.02(1), which the appellant invokes as an
    alternative, also eludes the appellants grasp.

[43]

The
    respondent acknowledges that the appeal involves a serious issue, the
    interpretation of Article 12 of IRSSA, a controversy that has thus far not
    ripened for appellate review. That said, it is worth mention that the grounds
    of appeal advanced include two questions of fact that are subject to a standard
    of review of palpable and overriding error, a standard more difficult to
    satisfy than to express. The grounds advanced, the failure to consider relevant
    evidence and drawing erroneous inferences, are notoriously impervious to
    appellate intrusion.

[44]

As for the
    irreparable harm constituent, payments of CEP compensation to unentitled
    applicants may be difficult to recoup once paid. And the payments would reduce
    any surplus in the Trust Fund, thus any further payments from the residue to
    those entitled to them. That said, we have no concrete evidence about the time
    involved in processing the applications and forwarding payments, much less the
    likelihood of substantial payments prior to the disposition of the appeal.

[45]

More
    importantly, however, the balance of convenience settles in favour of the
    respondents.

[46]

Compared
    to the residents/students of schools or institutions contained in the original
    Schedule E and Schedule F of IRSSA, residents/students of Stirland and
    Cristal have a significantly shorter time within which to apply for
    compensation under CEP. Despite the order under appeal, applications from
    Stirland and Cristal residents/students have not been processed, in part
    because the appellant has declined to add the names of the schools to schedule
    F.  Entry of the stay would shorten the period even further. For those who
    seek compensation under IAP, the complexity of the application process and the
    need for legal assistance in compiling and filing the necessary documents exacerbates
    the prejudice.

[47]

The motion
    for a stay until the disposition of the appeal is dismissed.

The Cross-motion

[48]

By
    cross-motion, the respondents seek two orders, only one of which is
    controversial. Unopposed is the cross-motion to expedite the hearing of the
    appeal currently scheduled for May 16, 2012. In dispute is a cross-motion for
    directions about the commencement date from which the time for delivery of the
    notice of appeal began to run.

The Additional Background

[49]

The Chief
    Justice released his Reasons for Decision on August 16, 2011.  After setting a
    schedule for counsel to deliver written submission on costs, the Chief Justice
    concluded:

[79]    In the meantime, I direct the parties to meet with
    Court Counsel for the purpose of settling the terms of the order that will flow
    from these reasons.

[50]

On
    November 16, 2011, the formal Order, upon which the parties agreed, was
    settled.  The order was entered on November 17, 2011.

[51]

On
    December 16, 2011, the Attorney General delivered the notice of appeal.

The Positions of the Parties

[52]

In support
    of her cross-motion, Ms. Vella says that the operative date for determining
    whether a notice of appeal has been delivered within the prescribed time period
    is the date the order under appeal was pronounced, unless the order itself says
    otherwise. The operative date is not the date on which the formal order is
    signed and entered.

[53]

In this
    case, Ms. Vella continues, the order bound the parties from the moment the
    Reasons for Decision were issued. Nothing in the order itself, said or left
    unsaid, expressly or by necessary implication, shows any contrary intention. 
    The general rule should prevail.

[54]

Ms. Vella
    submits that the only matters left unresolved by the decision were collateral
    issues, like timelines, the forms of notice, and directions on implementation. No
    issues of substance remained unresolved and no reconsiderations were sought or
    undertaken.

[55]

Ms. Read
    characterizes the cross-motion as a thinly disguised or poorly veiled attempt
    to have the appeal quashed.  Such a remedy, she submits, is not available from
    a chambers judge only from a panel of the court. Nor should the respondent be
    permitted to achieve indirectly what they cannot do directly.

[56]

At all
    events, Ms. Read says the operative date in this case is the date of the formal
    order. The Reasons for Decision make it clear that issues of substance were
    left unresolved and required collaboration among the parties.  As an
    alternative, she seeks an extension of the time for delivery of the notice of
    appeal until the actual service and filing date of December 16, 2011.

The Governing Principles

[57]

As a general rule, the time period within which a notice of
    appeal is to be delivered begins to run on the date the order under appeal is
    pronounced by oral or written reasons:
Byers (Litigation Guardian of) v.
    Pentex Print Master Industries Inc.
(2003), 62 O.R. (3d) 647 (C.A.), at
    para. 31. In other words, the time begins to run from the date a judgment is
    pronounced, and not from the date that it is signed and entered:
Byers
, at para. 31.

[58]

The general rule derives
    from the settled principle to which rule 59.01 gives effect that the binding
    effect of a judgment or order commences the date on which it is pronounced:
Byers
, at para. 31.

[59]

The general rule is not unqualified. The judgment itself may
    provide otherwise:
Byers
, at
    para. 31. Sometimes, the judgment is uncertain on an issue.  Clarification may
    be required. Something of substance may have been missed.  In these cases, the
    time runs from entry, not pronouncement:
Byers
, at paras. 33 and 34.

[60]

Where a court determines
    issues of costs in  discrete proceedings, after the decision on the merits has
    been given, the general rule that time runs from pronouncement is not
    displaced:
Byers
, at
    paras. 36 and 43.

The Principles Applied

[61]

In this
    case, I see no basis upon which to depart from the general rule that the
    operative date for the purposes of calculating the time within which the notice
    of appeal was to be delivered was August 16, 2011, the date the Reasons for
    Decision were released.  Nothing of substance remained undecided.

[62]

It follows
    that the notice of appeal was delivered out of time.  In the absence of a
    motion to quash the appeal, I would extend the date for service and filing to
    the date each occurred, namely, December 16, 2011.

Conclusion

[63]

For these reasons, the motion and cross-motion are
    dismissed. To regularize the appellate process, the time for service and filing
    of the notice of appeal is extended,
nunc pro tunc
, until December 16, 2011.

[64]

Both parties agree that
    the hearing of the appeal should be expedited. The hearing is expedited to a
    date in April 2012, agreeable to counsel, to be fixed by the Registrar.

[65]

The costs of these motions are reserved to the panel
    hearing the appeal.

Released: March 27, 2012                                      David
    Watt J.A.


