



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Provincial Police) v. Assessment Direct
    Inc., 2017 ONCA 986

DATE: 20171215

DOCKET: M48577 (C64473)

Juriansz J.A. (In Chambers)

BETWEEN

The Ontario Provincial Police and Her Majesty the
    Queen

Responding Parties (Respondents)

and

Assessment Direct Inc.,
    Universal Injury Rehabilitation Centre Inc., Osler Rehabilitation Centre Inc.,
    Metro Rehabilitation Centre Inc., Rouge Valley Rehabilitation Inc., and Publix
    Rehabilitation Inc.

Moving Parties (Appellants)

Richard H. Shekter, for the
    moving parties

John Patton, for the responding
    parties

Erin Dann, for the Special
    Referee

REASONS FOR DECISION

[1]

These are my reasons for declining to hear this motion and instead
    adjourning it to be heard by a panel.

[2]

The motion is characterized as a motion for directions. The moving
    parties seek an Order for directions with respect to the proper route of
    appeal in this matter. The moving parties filed their notice of appeal on
    October 25, 2017. Thereafter, a question arose as to whether this court had
    jurisdiction to hear the appeal. The appeal is from the decision of a judge of
    the Superior Court of Justice ruling on issues of solicitor-client privilege
    and litigation privilege over a variety of documents and audio files seized by
    the Ontario Provincial Police during the execution of
Criminal Code
,
    R.S.C. 1985, c. C-46 search warrants.

[3]

The moving parties factum sets out a detailed argument as to why this
    court has jurisdiction over what they submit is an appeal from the decision of
    a single judge of the Superior Court in a civil matter. The factum concludes that
    the Court of Appeal has the
jurisdiction to
    hear the appeal of this matter pursuant to s. 6(1)(b) of the [
Courts
    of Justice Act
, R.S.O. 1990, c. C.43
].
    However, the opposing view is that the proceeding before the Superior Court
    judge was criminal in nature. If that is the case there would be no statutory
    appeal to this court. The only appeal route available to the moving parties would
    appear to be pursuant to s. 40(1) of the
Supreme Court Act
, R.S.C.
    1985, c. S-26, with leave.

[4]

Questions of whether an appeal lies within the jurisdiction of this
    court must be decided by a three-judge panel of this court. The statutory and rules-based
    framework that defines this courts jurisdiction, along with this courts own
    practice directions, indicate that a single judge has no power to decide
    whether an appeal is within the jurisdiction of this court.

[5]

If the proceeding were civil, it would be governed by s. 134(3) of the
Courts
    of Justice Act
, which
provides that [o]n motion, a court to which an appeal is taken may, in a
    proper case, quash the appeal.

[6]

Rule 61.15(2.2) of the
Rules of Civil Procedure
then
provides that [a] motion in the
    Court of Appeal for an order that finally determines an appeal  shall be heard
    and determined by a panel consisting of not fewer than three judges sitting
    together.

[7]

Section 7.2.1 of the
Practice Direction Concerning Civil Appeals at
    the Court of Appeal for Ontario
, effective March 1, 2017, provides that:

A three-judge panel of the Court of Appeal holds oral hearings
    on the following types of motions (panel motions):

·

motions to quash an appeal pursuant to s. 134(3) of the
Courts
    of Justice Act


[8]

A similar framework would apply if the proceeding were criminal. The
Criminal
    Appeal Rules
, SI/93-169 do not provide a procedure for commencing a motion
    to quash a criminal appeal for lack of jurisdiction. However, by virtue of r. 2
    of the
Criminal Appeal Rules
, the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194 generally apply to criminal appeals with necessary
    modifications where the criminal rules are silent.

[9]

Moreover, s. 7.3.1 of the
Practice Direction Concerning Criminal
    Appeals at the Court of Appeal for Ontario
, effective March 1, 2017,
    provides that:

A three-judge panel of the Court of Appeal holds oral hearings
    on the following types of motions (panel motions)

[]


iii.

Motions to quash an appeal on the grounds that there is no statutory
    right of appeal  ; and


iv.

Motions for review of a decision of a single judge, if directed pursuant
    to s. 680 of the
Criminal Code
.

[10]

It is clear that this courts jurisdiction can only be determined by a
    panel of the court. This court has said so repeatedly. For example, in
RREF
    II BHB IV Portofino, LLC v. Portofino Corp
.
, 2015 ONCA 906, at
    para. 6, this court held that a single judge has no jurisdiction to quash an
    appeal and that only a panel of three judges can conclusively rule that this
    court does or does not have jurisdiction. See also
TFP Investments Inc.
    (Trustee of) v. Singhai
(1991), 44 O.A.C. 234, [1991] O.J. No. 323, at
    para. 11; and
Shinder v. Shinder
, 2017 ONCA 822, at para. 4.

[11]

Moreover, any declaration I might make would not be binding on a panel
    of this court. Should I declare that this court has jurisdiction over the
    matter, a panel of this court sitting in review of my decision, or on the
    appeal, could take a different view and quash the appeal. On the other hand,
    should I declare that this court does not have jurisdiction over the matter,
    the appeal proceeding would remain as an active appeal in this court and
    another motion before a three-judge panel would be necessary to quash it.

[12]

I recognize that there are cases in which single judges, sitting in
    chambers, have granted declarations as to this courts jurisdiction. With
    respect, my view is that such motions do not seek any actual direction and are
    inconsistent with the framework set out above.

[13]

Consequently, I have adjourned the motion to be heard by a panel of this
    court on January 18, 2018. I have directed the parties to file two additional
    copies of the materials.

R.G.
    Juriansz J.A.


