In 4352238 Canada Inc. v. SNC-Lavalin Group Inc., 2020 ONCA 303, Justice Roberts held that the Court of Appeal has jurisdiction to order a civil appeal to be heard in writing, regardless of whether one of the parties objects.
Justice Roberts noted that the Court of Appeal has broad implicit or ancillary jurisdiction to manage its own process. The Court of Appeal has jurisdiction to make any procedural order to prevent an abuse of process or to ensure the just and efficient administration of justice. The Court of Appeal’s powers may arise by necessary implication even in the absence of express statutory or common law authority.
Justice Roberts stated that directing that some appeals to proceed in writing is not inconsistent with any provision of the Courts of Justice Act, which does not mandate the absolute right to an oral hearing of an appeal. The Courts of Justice Act does not address the mode of hearings.
Although oral hearings are contemplated in the Rules of Civil Procedure, such a requirement is not expressly stated. Justice Roberts referred to rule 1.04(1) of the Rules of Civil Procedure, 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”.
In addition, Justice Roberts noted that the COVID-19 pandemic has created extraordinary circumstances to which everyone must adapt as best as they can. Where appropriate, some appeals must be dealt with in writing to ensure that appeals continue to be heard in a timely and orderly fashion.