We deal extensively with appellate practice and procedure in Sopinka and Gelowitz on the Conduct of an Appeal, 4th Edition, but occasionally novel circumstances will arise that could not have been anticipated and for which precedent offers no guidance. Such circumstances arose recently in Hilson v. 1336365 Alberta Ltd., 2019 ONCA 653. The Court of Appeal for Ontario released reasons signed by three judges of the Court, one of whom had not actually heard the appeal. The third panel member who had heard the appeal somehow had not been involved in the circulation of the draft reasons and thus had no opportunity to provide his input or signature. As that judge had not signed the judgment, it was not a judgment of the Court, and had no force or effect.
That much is clear. But what next? The original panel that heard the appeal remained seized of the appeal and asked for submissions from the parties. Conduct of an Appeal provides no guidance for these circumstances (yet). Not surprisingly, the party who was largely successful in the invalid judgment (the respondent) proposed that the third judge review the judgment and either assent or dissent. As the invalid judgment was expressed as unanimous, the adoption of this proposal would not have changed the outcome of the appeal.
The Court declined the respondent’s proposal and ordered a re-hearing by a differently constituted panel on an expedited basis. Because the third judge who heard the appeal had not participated in the preparation of the reasons previously released, “the decision-making process has been compromised and this panel cannot render a judgment.” The Court held that this defect could not be corrected after the fact. The Court’s brief reasons do not elaborate on why that is, but it reflects the collaborative nature of appellate decision-making. Participation of all judges who heard the appeal is essential, so that each judge’s independent views can be considered and weighed by the others. The reasons for judgement—and even the final outcome—may well have been different with the participation of all the judges on the panel. Nobody can say for certain, which is exactly why a new hearing before a differently constituted panel is essential, to protect the integrity of the Court’s process.