



COURT OF APPEAL FOR ONTARIO

CITATION: 4352238 Canada Inc. v. SNC-Lavalin
    Group Inc., 2020 ONCA 303

DATE: 20200513

DOCKET: C67394

Roberts J.A. (Case Management
    Judge)

BETWEEN

4352238 Canada Inc.

Applicant (Appellant)

and

SNC-Lavalin Group Inc.,
    SNC-Lavalin Inc., SNC-Lavalin Highway Holdings Inc., 7577702 Canada Inc., and MICI
    Inc.

Respondents (Respondents)

Mark A. Gelowitz, Allan D. Coleman and
    Lia Bruschetta, for the appellant

Linda Fuerst and Fahad Siddiqui, for
    the respondents SNC-Lavalin Group Inc., SNC-Lavalin Inc. and SNC-Lavalin
    Highway Holdings Inc.

Eliot N. Kolers and Alexander Rose, for
    the respondents 7577702 Canada Inc. and MICI Inc.

Heard: May 8, 2020 by teleconference

REASONS FOR DECISION

A.

Overview

[1]

This appeal was scheduled to be heard on April
    16, 2020, but was adjourned
sine die
due to the COVID-19 pandemic
    emergency. The parties appeared before me for a case management conference to
    determine how this matter will proceed. The appellant objected to the appeal
    proceeding in writing, as suggested by the respondents. It argued that this
    court would not have jurisdiction to hear an appeal in writing over a partys
    objection. I disagree. For the following reasons, this matter will proceed in
    writing.

B.

Analysis

(1)

This Court Has Jurisdiction to Order a Civil
    Appeal Heard in Writing

[2]

The appellant
submitted that this court has
    limited supervisory jurisdiction over its own process, restricted to governing
    administrative details, and cannot order an appeal be heard in writing over the
    objection of one of the parties to the appeal. This, according to appellant,
    would run contrary to the provisions of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43,
and the
Rules of Civil Procedure
,
R.R.O. 1990,
    Reg. 194,
which mandate an oral hearing of a civil appeal unless the
    parties consent to an appeal in writing.

[3]

I do not accept these submissions.

[4]

It is well settled that this courts implicit or ancillary jurisdiction
    to manage its own process is broad. This court has the jurisdiction to make any
    procedural order to prevent an abuse of process or to ensure the just and
    efficient administration of justice: see
R. v. Anderson
, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 58;
R. v. Cunningham
,
    2010 SCC 10, [2010] 1 S.C.R. 331, at paras. 18,
19;
Marché
    D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd.
, 2007 ONCA
    695, 87 O.R. (3d) 660, at para.
24.
The courts
    implicit powers include those that are reasonably necessary to accomplish the
    courts mandate and perform its intended functions: see
R. v. 974649
    Ontario Inc.
, 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 70. They arise by
    necessary implication even in the absence of express statutory or common law
    authority: see
Cunningham
, at para. 19; see also
Pierre v.

McRae
,
    2011 ONCA 187, 104 O.R. (3d) 321, at paras. 30-42.

[5]

The exercise of the courts jurisdiction to manage its own process by
    directing that some appeals proceed on the written record is not inconsistent
    with any provision of the
Courts of Justice Act
or the
Rules of Civil Procedure
, which, in any
    event, do not mandate the absolute right to an oral hearing of an appeal.
The
Courts of Justice Act
prescribes the composition of the
    Court of Appeal, but not the mode of hearings.
And, while oral hearings
    are contemplated, the
Rules of Civil Procedure
do not explicitly direct that appeals to the Court of Appeal require an oral
    hearing. Rather, r. 1.04(1) expresses the governing principle that the
Rules

shall be
    liberally construed to secure the just, most expeditious and least expensive
    determination of every civil proceeding on its merits.

[6]

It is also beyond controversy that the COVID-19 pandemic has created
    extraordinary circumstances to which we must all adapt as best we can. Since
    March 17, 2020, there have been no in person appeals heard at the Court of
    Appeal. More than 100 scheduled appeals had to be adjourned. Through a series
    of Practice Directions, this court has endeavoured to address the tremendous
    disruption caused by the pandemic. As a result, appeals are being heard in
    writing or remotely until in person appeals can resume. Case management
    conferences are being held to manage and schedule them.

[7]

Accordingly, it is well within this Courts jurisdiction to order that a
    civil appeal be heard in writing when the due administration of justice
    requires it. During these extraordinary times, judicial resources are strained.
    The ability to hear appeals remotely is not unlimited. Where appropriate, some
    appeals must be heard in writing in order to ensure that appeals continue to be
    heard in a timely and an orderly fashion.

(2)

This Appeal Should Proceed in Writing

[8]

In the present case, this appeal is entirely suited to being heard in
    writing. It arises out of the dismissal of an application for narrow
    declaratory relief. The application proceeded on a paper record. It concerns
    the interpretation of a clause in a contract within the context of a relatively
    straightforward factual matrix. The parties are permitted to file supplementary
    facta. Further submissions are not foreclosed: if necessary, the panel has the
    option to seek further oral and written submissions. There is absolutely no
    prejudice or unfairness to the appellant by proceeding in writing. But the potential
    prejudice to the respondents by any further delay and the unnecessary strain on
    the court system are obviated.

C.

Directions

[9]

This appeal will proceed in writing.

[10]

The
    parties shall serve and file electronically all material previously filed in
    paper and supplementary facta of no more than ten pages as follows: (1) the
    appellant by June 3, 2020; and (2) the respondents by June 24, 2020.

[11]

The
    supplementary facta shall include the parties respective brief costs
    submissions and append a costs outline. The facta and supplementary facta shall
    include hyperlinks as described in section 11 of the
Practice
    Direction Regarding the Electronic Conduct of Matters During the COVID-19
    Emergency
. Where possible, as described in section 12 of the same
    Practice Direction, parties are encouraged, but not required, to hyperlink the
    key documents referred to in their factums and use PDF bookmarks to facilitate
    navigation of the materials filed.

The parties are to consult
    the
Practice Direction Regarding the Electronic Conduct of
    Matters During the COVID-19 Emergency
at
https://www.ontariocourts.ca/coa/en/notices/covid19/practice-direction-electronic-conduct.pdf
.
    All electronic filings must be sent via email to
coa.e-file@ontario.ca
.

[12]

The
    courts appeal scheduling unit will contact the parties to advise the week
    during which the appeal shall be considered by the panel so that they are
    available in the event the panel requires additional submissions orally or in
    writing.

[13]

There
    is no publication ban nor any concerns about members of the public or media
    having access to the hearing.

L.B.
    Roberts J.A.


