On July 4, 2014, Sharlow J.A. provided guidance in Exeter v. Canada (Attorney General) on motions for summary dismissal in the Federal Court of Appeal. In that case, the Crown was seeking summary dismissal on the grounds that Ms. Exeter’s appeal could not succeed, had no factual foundation, and was an abuse of process, vexatious and frivolous.
In dismissing the Crown’s motion, Sharlow J.A. noted that Ms. Exeter has a statutory right to appeal a judgment or order of the Federal Court, and that no statutory provisions nor the Federal Courts Rules expressly permit the Court to dismiss an appeal without a hearing. However, Sharlow J.A. accepted that the Court “has inherent jurisdiction to control abuses of its process, and may exercise that jurisdiction by dismissing a proceeding without a hearing” (para. 8). She observed that this jurisdiction is occasionally exercised when, for example, an appellant has unreasonably delayed taking the required steps to make an appeal ready for a hearing or has repeatedly failed to abide by the Rules or orders of the Court. A clear absence of jurisdiction is also a valid reason to summarily dismiss an appeal.
Sharlow J.A. further accepted that, “in theory, summary dismissal of an appeal may be warranted by analogy to cases in which pleadings are struck”. She cautioned, however, that “the power to dismiss an appeal summarily on that basis must be exercised sparingly, and only where it is clear that the appeal cannot succeed” (para. 8).
Sharlow J.A. dismissed the Crown’s motion for summary dismissal because it did not establish the kind of “ungovernability” required for granting such motion, and it was not clear that the appeal could not succeed. Sharlow J.A. stated that she was “unable to conclude that the appeal is so unworthy of the attention of this Court that Ms. Exeter should be denied an oral hearing” (para. 11).