In Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc. and Sankar v. Bell Mobility Inc., the Court of Appeal for Ontario interpreted two orders remanding cases for disposition in accordance with the Supreme Court of Canada’s decision in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. In both decisions, the Court construed its role narrowly and held that it could only consider whether the application of Ledcor mandated a different disposition. In both cases, the answer was “no” and the original decision was affirmed.
Deslaurier and Sankar both engaged questions of contractual interpretation. The original appeals were heard after the Supreme Court’s decision in Sattva Capital Corp. v. Creston Moly Corp. (which replaced the historical standard of review for contractual interpretation with a more deferential one), but before Ledcor (which recognized, as an exception to Sattva, that the interpretation of standard form contracts may be reviewed for correctness). The Court of Appeal applied a correctness standard of review in both cases but reached opposite results: in Deslaurier, the appeal was allowed as a result of extricable errors of law; in Sankar, the motion judge’s decision was upheld as correct.
The losing party in both cases applied for leave to the Supreme Court. Pursuant to s. 43(1.1) of the Supreme Court Act, the Supreme Court remanded both cases to the Court of Appeal “for disposition in accordance with Ledcor.”
Meaning and effect of the remand orders
Unsurprisingly, the parties that had been unsuccessful on the original appeals invited the Court of Appeal to engage in an extensive review of the original decisions. In Sankar, the appellant argued that the remand “should be heard as a fresh appeal.” Similarly, in Deslaurier, the respondent effectively invited the Court to “consider afresh” the issues addressed in its original decision.
The Court of Appeal rejected these submissions, and held that the remands were not “at large.” Rather, the Court concluded that its role was a narrow one, as explained in Deslaurier:
[The remand order] requires this court to reconsider its previous decision in light of the Supreme Court’s authoritative pronouncements in Ledcor on issues that may have affected our disposition of the appeal. This court should not revisit questions that Ledcor does not touch upon. If the application of Ledcor mandates a different disposition, this court should alter its earlier decision in light of the teachings of Ledcor. If it does not, this court should affirm its earlier decision.
In both cases, the Court of Appeal concluded that Ledcor did not mandate a different disposition. Therefore, the original decisions were affirmed.
Comparison with B.C. approach
Deslaurier and Sankar are only the latest cases remanded by the Supreme Court in recent years. Interestingly, at least one court appears to have described its role on a remand hearing more expansively. In British Columbia (Ministry of Forests) v. Teal Cedar Products Ltd., a decision the appellant in Sankar invited the Court of Appeal for Ontario to follow, the British Columbia Court of Appeal held that a “hearing on remand is to be treated as a fresh appeal.”
On the surface, Teal may seem inconsistent with Sankar and Deslaurier. However, the difference may be one of semantics rather than substance. Even though it described a remand hearing as a fresh appeal, the Court in Teal recognized that it could “inform itself from its earlier reasons,” and that it should proceed with particular regard to the law as stated in the decision forming the basis of the remand order. Further, the Court in Teal seemed to approach its role in more or less the same way as the Court in Sankar and Deslaurier, by outlining the reasoning in its original decision and then asking if anything in the latest Supreme Court decision required a different disposition.