The Federal Court of Appeal recently confirmed it is not prepared to rubber stamp unopposed appeals, or appeals on consent without having facts proven by admissible evidence or other permissible sources of fact and some basis in the law for the relief sought in the appeal.
In Advantage Products Inc v Excalibre Oil Tools Ltd, Excalibre successfully brought a motion to the Federal Court of Appeal for an order dismissing for delay the appeals of Advantage Products in two appellate files. Excalibre also brought a motion for judgment allowing its cross-appeal in one of those files, or in the alternative for an order permitting it to requisition a hearing in the cross-appeal and proceed with the cross-appeal without regard to the availability of Advantage. The issue the Court of Appeal identified was whether that cross-appeal should be allowed by default.
The Court of Appeal drew on a body of jurisprudence concerning the consent granting of judgments in applications and appeals. Two principles were drawn from that case law: (1) courts can act only on the basis of facts proven by admissible evidence and other permissible sources of fact; and (2) courts can only act in accordance with the law. The Court of Appeal pointed out an important distinction between a consent dismissal or discontinuance in which the pre-existing legal status quo is not changing, and an application (or appeal) on consent in which the pre-existing legal status quo is being changed, i.e. a binding administrative order is then being affected. The Court of Appeal concluded that it must be “persuaded on the facts and the law before it that it can grant the application and change the legal status quo.”, i.e. the Court of Appeal had to be sure that there was a legal and evidentiary basis for the granting of the appeal.
The Court of Appeal went on to describe a number of ways in which an application or appeal on consent can be done. In the result, the Court of Appeal concluded, based on the record before it, the cross-appeal could not be allowed by default, but the alternative relief of an order permitting Excalibre to requisition a hearing in the cross-appeal and proceed with the cross-appeal without regard to the availability of Advantage was granted.
A copy of the decision may be found here.