In 4352238 Canada Inc. v. SNC-Lavalin Group Inc. [2020 ONCA 303], the Ontario Court of Appeal (“ONCA”) recently confirmed its jurisdiction to hear appeals in writing.

Like many hearings over the last three months, this matter was scheduled for mid-April, 2020 but was adjourned due to COVID-19. When the issue of scheduling was addressed, the Appellant opposed a hearing in writing on the grounds that the ONCA did not have the jurisdiction to order such a hearing unless they consented. The Appellant also submitted that the ONCA had limited supervisory jurisdiction over its own process, which was restricted to governing administrative details.

The ONCA rejected the Appellant’s position for several reasons: the ONCA’s implicit or ancillary jurisdiction to manage its own process is broad – not limited. The ONCA has jurisdiction to make any procedural order to prevent an abuse of process or to ensure the just and efficient administration of justice. Such powers include those that are reasonably necessary to accomplish the ONCA’s mandate and perform its intended functions.

Further, when the ONCA manages its own process and directs that some appeals proceed via writing, this is not inconsistent with any provisions within the Courts of Justice Act, R.S.O. 1990, c. C.43 or the Rules of Civil Procedure, RRO 1990, Reg 194, and in any event, these authorities do not provide an absolute right to an appeal by an oral hearing. The ONCA referred to r. 1.04(1) which states that the Rules

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

This decision is part of a growing number of decisions from Ontario Courts that are reacting to COVID-19 measures. The changing environment is forcing a process of adaptation to avoid backlogs. As the ONCA identified in this case, over 100 appeals have been adjourned because of COVID-19.

The caveat that the ONCA provides is that this case was “entirely-suited” to be heard in writing. This case arose out of the dismissal of an application for narrow declaratory relief and the issue was really how to interpret a clause in a contract. The facts of the case were also relatively straightforward. Further submissions were not foreclosed. Lastly, no prejudice or unfairness would result from an appeal in writing.

So, it appears that the following factors may be relevant for the ONCA to determine that an appeal is “entirely suitable” for a hearing in writing:

1. the nature of the relief at the previous hearing;
2. whether the previous hearing itself proceeded on a paper record;
3. the complexity of the facts;
4. the ability to make further submissions;
5. the balance of convenience.