There is an established line of authority that no appeal lies to the Court of Appeal for Ontario from a lower court decision denying leave to appeal, except where the lower court refused to grant leave based on a finding of lack of jurisdiction rather than on the merits of the leave application. The origins of this principle, which the Court of Appeal articulated in Denison Mines Ltd. v. Ontario Hydro, are detailed in Sopinka and Gelowitz on the Conduct of an Appeal, 4th Edition, §§1.4-1.6.
What if the lower court denied leave to appeal because it lacked jurisdiction to entertain the matter, but the court also addressed the merits and commented that leave to appeal would have been denied in any event? Had the court stopped with the jurisdiction question, an appeal may lie in the Court of Appeal. Does the lower court’s commentary on the merits destroy the possibility of that appeal?
The Court of Appeal recently addressed that situation in BGOI Films Inc. v. 108 Media Corporation, 2019 ONCA 539. The Court quashed two appeals with brief reasons, holding as follows:
…no appeal lies to this court from a refusal to grant leave to appeal where that refusal is based upon the merits. Although the application judge found that he was without jurisdiction to entertain the matter, he went on in any event and decided the matter on its merits, deciding that neither of the questions that he was called upon to decide raised questions of law. No appeal lies from an order granting or refusing leave to appeal on the merits.
It thus appears that the lower court’s alternative commentary may impact the availability of an appeal in the Court of Appeal. There is justification for this approach. As explained in Sopinka and Gelowitz, the Denison Mines principle springs from the common law, which recognizes a jurisdictional appeal in limited circumstances to correct a jurisdictional error of a lower court. This ensures that, if the merits ought to have been considered, an appellate court may do so. However, in a case like BGOI Films, even if the lower court committed a jurisdictional error, the appellant was not denied consideration of the leave application on its merits (albeit in the alternative). There is less of a need in that situation for the Court of Appeal to exercise common law appellate review.
BGOI Films is also interesting for the Court of Appeal’s approach to costs. As we have written about before, the Court of Appeal may award elevated costs where an appeal should not have been brought in the first place. BGOI Films is another example of this. Having quashed the two appeals, the Court awarded costs “on a higher scale because it is evident that [the appellant’s] litigation strategy has been to delay the inevitable, knowing that they had no arguable grounds of appeal.” The Court held that “[t]his is a waste of court resources and is worthy of censure by this court.”