(Ontario Court of Appeal) That court was asked whether it had jurisdiction to consider a ruling that the parties had agreed to exclude the court’s jurisdiction, after the court of first instance had ruled that there was such an agreement. The lower court had refused permission to appeal.
Held: Morden J said: ‘As I have said, the non-appealability of orders refusing leave is the general rule . . the courts have engrafted onto this general rule an exception which is applicable where the judge mistakenly declines jurisdiction. Hillmond referred to and quoted the following passage from the reasons of Cartwright J for the Supreme Court of Canada in Canadian Utilities Ltd v Deputy Minister of National Revenue:
‘It appears to me to have been consistently held in our courts and in the courts of England that where a statute grants a right of appeal conditionally upon leave to appeal being granted by a specified tribunal there is no appeal from the decision of that tribunal to refuse leave, provided that the tribunal has not mistakenly declined jurisdiction but has reached a decision on the merits of the application.
Denison relies upon this exception in the present case. It submits that Macdonald J erred in concluding that the arbitration agreement dealt with the appeals on questions of law (s.45(1) of the Arbitration Act 1991), that is, that the parties had ‘contracted out’ of a right of appeal and, accordingly, erred in declining jurisdiction.
I appreciate that in many cases the meaning of ‘jurisdiction’ can be fraught with difficulty. In the present case, however, I think that the principle stated by Cartwright J can be applied with some degree of confidence. He distinguished between declining jurisdiction and reaching a decision on the merits of the application. In the present case, the parties did not argue the merits of the application before Macdonald J. By agreement they argued whether or not Macdonald J had jurisdiction to grant leave to appeal. If she had decided that she had jurisdiction, they would have continued the hearing of the application on the merits. I think that the exception applies.’
Judges:
Morden J
Citations:
[2002] 56 O.R (3d) 181
Commonwealth, Arbitration
Updated: 01 May 2022; Ref: scu.251560