The Top 10 Judicial Review and Civil / Commercial Appellate Cases of 2022

As 2022 draws to a close, it is time to take stock of the most important judicial review and civil appellate cases that have occupied the pages of Torkin Manes’ LegalWatch newsletter this year.

Canadian Courts have spilled ink on a number of notable themes in public law and appellate jurisprudence, including:

• A new conceptual framework devised by the Supreme Court of Canada to stay administrative proceedings for delay;
• The role that commercial and business considerations play in assessing a contracting party’s compliance with the duty of good faith;
• The criteria applicable when appealing commercial arbitration awards;
• How to pursue claims against non-parties to a commercial arbitration clause;
• When to seek security for costs on a civil appeal; and
• “Boomerang” summary judgment motions.

Here is what 2022 taught us:

A.       Developments in Public Law and the Conduct of Civil Appeals

1.       When Does Administrative Delay Give Rise to an Abuse of Process?

Perhaps the most important public law decision of 2022 is the Supreme Court of Canada’s ruling in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29.

Abrametz involved a delay of approximately 71 months in a professional discipline case against a lawyer.

The Court established a refined conceptual framework for determining when inordinate administrative delay gives rise to significant prejudice so as to amount to an abuse of process. The Court was also careful to establish that the principles governing criminal law delays have no application in the public law context.  

Moreover, the Court arguably heightened the bar for staying proceedings on the basis of administrative delay – offering a panoply of alternative judicial remedies in the face of a lengthy delay.

To learn more about the implications of Abrametz to your tribunal proceeding, read “Top 5 Lessons You Now Need to Learn About Administrative Delay” here.

2.       The Top 5 Questions to Ask Before Seeking Judicial Review

Judicial review, in which Courts analyze the merits and procedure surrounding tribunal and administrative decisions, is fraught with minefields for the unversed.

In “Top 5 Questions to Ask Before Seeking Judicial Review”, LegalWatch canvassed the most important considerations any party should consider before embarking on an application for judicial review.

3.       Seeking Security for Costs on a Civil Appeal

Appellate Courts have limited tools at their disposal to discourage frivolous appeals. One such tool is a motion for security for costs, awarded in advance of the appeal.

In Richardson v. Arsenov, 2022 ONCA 137, the Ontario Court of Appeal illustrates how a security for costs order can be employed to stall or dismiss a meritless appeal.

To learn more about this decision, read “Why Seek Security for Costs on Appeal?” here.

4.       Stays Pending Appeal and Judicial Review

The commencement of an appeal or application for judicial review may not stop the lower Court or tribunal decision being challenged from taking effect.

A number of important considerations factor into the analysis of whether a party can and should seek a stay pending an appeal or judicial review.

To learn more about the practical analysis motions for a stay of proceedings, read “Stays Pending Appeal and Judicial Review: What You Need to Know” here.

5.       When a Judicial Review Application is Out of Time

A recent amendment to Ontario’s Judicial Review Procedure Act, R.S.O. 1990, c.J.1 provides that most judicial review applications must now be commenced within 30 days of the decision. 

This is a departure from the six-month timeline that had been established in the jurisprudence to date. However, Courts have the discretion to extend the 30-day timeline in appropriate circumstances. 

To learn more about these circumstances, read “Is It Too Late to Seek Judicial Review of Your Tribunal Decision?” here.

6.       Attacking an Administrative Decision for Procedural Unfairness

Administrative or tribunal decisions are more vulnerable on judicial review where procedural fairness has been compromised.

To learn more about the essential elements that Courts require for a fair administrative procedure, read “Top Five Considerations When Challenging a Tribunal Decision for Unfairness” here.

B.       Appeals in Commercial Litigation

7.       The Duty of Good Faith in Contractual Dealings

In January 2022, Torkin Manes LegalWatch canvassed the Ontario Court of Appeal’s Decision in Stericycle ULC v. HealthPRO Procurement, 2021 ONCA 878.

Stericycle represents an important footnote to the trilogy of cases by the Supreme Court of Canada which established a duty of good faith in all contractual dealings.   

The Court of Appeal established that business considerations, including industry practice and commercial custom, will inform the Court’s analysis of the whether the duty of good faith has been breached.

To learn more about Stericycle, read “Business Context Matters When Assessing Good Faith” here.

Moreover, the nature of what constitutes a “dishonest” performance of a commercial contract is constantly evolving. 

To learn more about how Ontario Courts have interpreted the duty of honest contractual performance in the context of a share purchase agreement, read “What You Need to Know About ‘Good Faith’ and Your Business Contract” here.

8.       Appealing Commercial Arbitration Awards

Canadian Courts adopt a highly deferential posture towards commercial arbitration awards.

There is a conflict in Ontario jurisprudence, however, about which standards of review apply when Courts hear appeals from commercial arbitration awards.

To learn more about this tension in the case law, read “What You Need to Know about the Courts’ Varying Approaches to Appealing Commercial Arbitration Awards” here.

To learn more about the main considerations a party should consider before appealing a commercial arbitration award, read “Top 4 Considerations When Appealing Commercial Arbitration Awards” here.

9.       Claims Against Non-Parties to a Commercial Arbitration Agreement

How does one pursue a claim against non-parties to a commercial contract that requires the parties to the agreement to arbitrate?

In Bridlewood v. Finch Developments Ltd. v. 2372285 Ontario Ltd., 2022 ONSC 2546, the Court establishes that valid equitable claims against related parties to a commercial contract may proceed in Court.

To learn more about this topic, read “Claims Against Related Non-Parties to a Joint Venture Agreement: What You Need to Know” here.

10.      “Boomerang” Summary Judgment

In February 2022, the Ontario Court of Appeal issued its decision Graham v. Toronto (City), 2022 ONCA 149, which addresses the gnarly question of reverse summary judgment motions – in which the judge, in the absence of a formal cross-motion, grants judgment in favour of the party resisting the motion.

The Court established a number of guidelines to ensure that the process of “boomerang” summary judgment motions remains fair to all parties.

To learn more about what these guidelines entail, read “What You Need to Know About ‘Boomerang’ Summary Judgment Motions” here.

An Important Year in Appeals and Judicial Review

There is no doubt that 2022 has effected important changes in the case law governing civil appeals and applications for judicial review.

We look forward to advising you of future legal developments in 2023 and wish you all the best for the holiday season.

Marco P. Falco is a partner in the Litigation Department at Torkin Manes LLP whose practice focuses on civil appeals and applications for judicial review.   If you require assistance with your appeal or application for judicial review, please contact mfalco@torkin.com.  A conflict search will need to be conducted before discussing your matter.