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Appeals - Transfers. Whaling v. Cossarini
In Whaling v. Cossarini (Ont CA, 2025) the Ontario Court of Appeal considered the test for an appeal court transfer [under CJA 110], here to correct an appeal route error:[8] This court has no jurisdiction to hear this appeal. It is an appeal of a final order of a judge of the Family Court made only pursuant to provincial legislation and, as such, must be made to the Divisional Court pursuant to s. 19(1)(a.1) of the Courts of Justice Act.
[9] Where a proceeding is taken before the wrong court, it may be transferred to the proper court: s. 110(1) of the Courts of Justice Act. The decision to transfer is discretionary: Bernard v. Fuhgeh, 2020 ONCA 529, 61 C.P.C. (8th) 231, at para. 15. In deciding whether a transfer is in the interests of justice, the court considers three factors: (1) the merits of the proposed appeal; (2) prejudice that the respondent may suffer as a result of further delay while the appeal is waiting to be heard; and (3) whether the appellant acted promptly after becoming aware that jurisdiction was in dispute.
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[14] We nonetheless declined to order a transfer. Although this is not a case where the appeal clearly has no merit, having weighed the factors, in particular the ongoing prejudice to the respondent, we concluded that the interests of justice do not favour an exercise of our discretion in the appellant’s favour. . Royal Bank of Canada v. Lendak
In Royal Bank of Canada v. Lendak (Ont Divisional Ct, 2024) the Ontario Court of Appeal dismissed an appeal from a Small Claims RBC bank action (which had been transferred from the Superior Court - Simplified Procedure), claiming credit line and credit card debt.
Here the court considers the commencement date of an action that was transferred between courts:[43] The word “commence” means to “begin” or “start”. In this case, the respondent’s claim was “commenced” when it began on September 21, 2017 by way of an issued Statement of Claim under the simplified procedure provided in r. 76 of the Rules of Civil Procedure.
[44] Justice Stinson’s order states: “I therefore direct that it be transferred to the Small Claims Court at Elliott Lake and henceforth proceed as a matter commenced there” [Emphasis added]. Justice Stinson’s order was clearly an order transferring a proceeding from one court (the Superior Court of Justice) to another court (the Small Claims Court) where he concluded it was more suited to hear the dispute between the parties. His order did not dismiss, stay, or otherwise end the existing claim. The claim still existed. Justice Stinson’s order simply transferred it to Small Claims Court.
[45] The appellant submits that Deputy Judge Paquette’s decision contained a “finding of fact” that the proceedings had been “commenced” in December 2022, and that finding was binding on Deputy Judge Munro.
[46] A review of the proceedings before Deputy Judge Paquette makes it clear that he did not decide or make a “finding of fact” that the claim had been “commenced” in December 2022. He found that the claim had been “transferred” from Toronto to Elliot Lake (para.5) and that the “commencement date of the Order of Justice Stinson” in the Small Claims Court was the date the file was received by the Clerk in Elliot Lake (para. 7).
[47] No appeal was taken from Deputy Judge Paquette’s decision. Further, even if there was a “finding of fact” it was not binding on the trial judge, who was the trier of fact.
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[51] It makes no sense that transferring a matter to Small Claims Court would re-start the clock with respect to the Limitations Act. The purpose of the Limitations Act is to provide a clear and cohesive scheme for addressing limitations issues, one that balances the plaintiff’s right to sue with the defendant’s need for certainty and finality. It recognizes that lawsuits should be brought within a reasonable time and that individuals should not be subjected to the threat of being sued indefinitely: Canaccord Capital Corp. v. Roscoe, 2013 ONCA 378 at para. 19. . Kuca v. George Brown College
In Kuca v. George Brown College (Div Court, 2024) the Ontario Divisional Court dismissed a CJA s.110 application to transfer an appeal from the Divisional Court to the Court of Appeal:[28] Section 110(1) of the Courts of Justice Act provides: "[w]here a proceeding or a step in a proceeding is brought or taken before the wrong court, judge or officer, it may be transferred or adjourned to the proper court, judge or officer." Whether to do so is a matter of discretion.
[29] In exercising my discretion, there are three criteria to consider:(a) Does the Appellant have a meritorious appeal?
(b) Will the Respondent suffer undue prejudice as a result of further delay while the appeal is waiting to be heard by ONCA?
(c) Has the Appellant moved expeditiously after becoming aware that jurisdiction was an issue? [30] Applying those criteria, the Respondent argues that this court should exercise its discretion against transferring the appeal to ONCA and instead dismiss the appeal for want of jurisdiction.
[31] I have considered each factor in turn, and I find that the appeal has little to no reasonable chance of success. . J.M. v. B.S.
In J.M. v. B.S. (Ont CA, 2024) the Ontario Court of Appeal dismissed a motion to extend time to commence an appeal, in part as the appellant tried to commence the appeal in the wrong court:[5] This motion turns on the merits of the appeal. This court’s jurisdiction is relevant to assessing the merits of the appeal. While a single judge of this court cannot quash an appeal because of lack of jurisdiction, a single judge can consider the court’s jurisdiction when deciding whether to grant an extension: Fontaine v. Canada (Attorney General), 2021 ONCA 931, at para. 8. An appeal brought in the wrong court “undercuts its merits and the interests of justice in granting the extension”: Collins v. Tiveron, 2024 ONCA 447, 2 R.F.L. (9th) 257, at para. 16. . Janzen v. Cook
In Janzen v. Cook (Ont CA, 2024) the Ontario Court of Appeal grants an appeal court transfer (CA to Divisional), and usefully explains family law trial and appeal routes:[1] This decision addresses the issue of the appropriate jurisdiction for an appeal of a final order made only under the Family Law Act, R.S.O. 1990, c.F. 3 by a Family Court judge in Cayuga, dismissing a motion to change a separation agreement.
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Positions of Parties
[7] Before me, the respondent brings a motion for an order transferring the appeal to the Divisional Court in Hamilton on the basis that the Divisional Court has jurisdiction and this court does not. He relies on ss. 110(1) and 19(1)(a.1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43.
[8] Under s. 110(1) of the Courts of Justice Act, where a proceeding or step in a proceeding is brought before the wrong court, it may be transferred to the right court. Therefore, if the respondent is correct, the appeal may be transferred to the Divisional Court in Hamilton.
[9] Under s. 19(1)(a.1) of the Courts of Justice Act, an appeal lies to the Divisional Court from, “a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario”.
[10] The appellant responds by submitting that the Court of Appeal has jurisdiction by virtue of s. 19(1.2) of the Courts of Justice Act, which addresses the monetary jurisdiction of the Divisional Court. She asserts that as her claim is for more than $50,000, jurisdiction lies with the Court of Appeal. She also relies on the case of Bahadori v. Samadzadeh, 2009 ONCA 10.
Analysis
[11] In 2020, the Courts of Justice Act was amended to simplify appeal routes in family law matters. The amendments came into force on March 1, 2021.
[12] There are three kinds of courts that preside over family law matters in Ontario at first instance: the Family Court, the Superior Court and the Ontario Court of Justice.
[13] Under s. 21.1(1) of the Courts of Justice Act, the Family Court is a branch of the Superior Court of Justice. It is sometimes referred to as the Unified Family Court. It combines the jurisdiction of the Ontario Court of Justice and the Superior Court of Justice in relation to family law matters and hears all such matters where it exists: Christodoulou v. Christodoulou, 2010 ONCA 93, 258 O.A.C. 193, at para. 33. The Family Court sits in various designated locations across Ontario. One such location is Cayuga, Ontario. Described as the Superior Court of Justice, Family Court, it is clear that the order in issue in this motion was a Family Court order.
[14] In other non-designated areas, the Superior Court of Justice and the Ontario Court of Justice both hear family law matters. Each has distinct and overlapping subject matter jurisdiction.
[15] A final order of the Family Court lies to the Divisional Court if it was made only under provincial legislation. As mentioned, s. 19 (1) of the Courts of Justice Act states that “[a]n appeal lies to the Divisional Court from…(a.1) a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario”.
[16] As the order the appellant seeks to appeal is final, was made by a judge of the Family Court, was made under the provincial Family Law Act and, importantly, only under that Act, her appeal lies to the Divisional Court. Provided these four characteristics are met, her appeal is governed by s. 19(1)(a.1). The quantum of support disputed by the appellant and the respondent’s alleged failure to disclose are irrelevant to the issue of jurisdiction.
[17] The case of Bahadori v. Samadzadeh relied upon by the appellant predates the amendments to the Courts of Justice Act and therefore has no application to the facts of this case. Had the order been made under the Divorce Act, RSC 1985, c. 3 (2nd Supp), by way of example, the appellant’s arguments would have had merit. However, once the four characteristics are met, the Divisional Court has jurisdiction, not the Court of Appeal.
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