



COURT OF APPEAL FOR ONTARIO

CITATION: SS & C Technologies Canada
    Corp. v. The Bank of New York Mellon Corporation, 2021 ONCA 913

DATE: 20211222

DOCKET: M52803 (C69439)

Simmons, Pepall and Roberts JJ.A.

BETWEEN

SS & C Technologies Canada
    Corp.

Applicant

(Respondent/Responding Party)

and

The Bank of New York
    Mellon Corporation

and CIBC Mellon Global Securities Services
    Company

Respondents

(Appellants/Moving Parties)

J. Thomas Curry, Christopher Yung, Eli
    Mogil and Erin S. Chesney, for the appellants/moving parties

Ren Bucholz and Catherine Fan, for the respondent/responding
    party

Heard: December 8, 2021

REASONS
    FOR DECISION

[1]

This is a motion to review the September 3,
    2021 order of a single motion judge of this court. The motion judge dismissed
    the moving parties motion for directions concerning their appeal.
    Specifically, the motion judge dismissed the moving parties request that their
    appeal be expedited and that they be relieved from the filing of a copy of the
    application judges order on liability.

[2]

On April 14, 2021, the application judge
    determined liability issues in favour of the responding party (the liability
    order). He directed that there be a trial on the issue of damages, which is now
    scheduled for May 18 to 27 and June 21 to 24, 2022 (the damages trial), and
    he suspended any appeal periods until he released his reasons on damages. Subsequently,
    he dismissed a motion by the moving parties to adjourn the damages trial until
    after the appeal from the liability order and refused to sign the draft order
    until the disposition of the damages trial. The moving parties have appealed
    the liability order and have not sought leave to appeal the other orders.

[3]

The motion judge declined to expedite the
    appeal to be heard before the damages trial. She also concluded that it was not
    necessary to consider the moving parties request that they be relieved from
    the filing of a copy of the application judges liability order.

[4]

The moving parties submit that the motion
    judge erred by effectively ordering a stay of their appeal when there was no
    motion for this relief before her. They argue that as their appeal could
    dispose of most if not all of the issues to be determined on the damages trial,
    the motion judges decision was unreasonable because the justice of the case
    requires that their appeal be heard before the damages trial.

[5]

We do not accept these submissions. We see no
    factual or legal error that would warrant intervention with the motion judges
    decision not to expedite the appeal.

[6]

It is well established that a panel review of
    a motion judges decision is not a
de novo

determination:
Machado
    v. Ontario Hockey Association
, 2019 ONCA 210, at para. 9. The reviewing
    panel asks whether the motion judge erred in principle in disposing of the
    motion: see
Yaiguaje v. Chevron Corporation
, 2017 ONCA 827, 138 O.R.
    (3d) 1, at para. 21. Discretionary decisions of a single judge are, absent legal
    error or misapprehension of evidence, entitled to deference:
Machado
,
    at para. 9;
Yaiguaje
, at para. 20.

[7]

The motion judges refusal to expedite the
    appeal was squarely within her discretion. The motion judge considered and
    applied the overarching principle of whether it was in the interests of justice
    to expedite the appeal. She correctly balanced all the relevant factors.

[8]

Effectively, the moving parties are asking
    this court to reweigh the factors considered by the motion judge and to redo
    her analysis afresh. Absent error, which is not present here, that is not our
    task.

[9]

As is clear from the motion judges order, she
    did not stay the hearing of the appeal from the liability order nor did she
    make any order respecting the filing of the formal liability order. Apart from
    the absence of a signed order, there is no impediment to the moving parties
    perfecting and continuing with their appeal. The parties agree that the
    liability order was a final order. As a result, we would vary the motion
    judges order to relieve the moving parties from the obligation of filing a
    copy of the formal liability order in order to perfect their appeal.

[10]

That said, it would be most desirable if a copy of the
    formal liability order were filed prior to the hearing of the appeal. To that
    end, we encourage the parties to agree on the form of the liability order prior
    to the hearing of the appeal.

[11]

It will be up to the moving parties to perfect their appeal
    and apply for an appeal date through the scheduling office in the ordinary
    course. However, nothing in our order alters the application judges order dismissing
    the moving parties motion to adjourn the damages trial nor the present
    scheduling of the damages trial.

[12]

The motion is otherwise dismissed.

[13]

As the results of this motion are mixed, we fix costs in
    the agreed upon amount of $5,000, inclusive of disbursements and all applicable
    taxes, and order that they be awarded to the successful party on the appeal.

Janet
    Simmons J.A.

S.E.
    Pepall J.A.

L.B.
    Roberts J.A.


