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Civil Litigation - Transfers from Wrong Court. Melville v. McLaren
In Melville v. McLaren (Ont CA, 2023) the Court of Appeal illustrates a simple transfer of a proceeding between courts of different level:[1] This court does not have jurisdiction to hear this appeal.
[2] The application that was the subject matter of this appeal was brought under and related to the Land Titles Act, R.S.O. 1990, c. L.5. Pursuant to s. 27 of that Act, an appeal lies to Divisional Court. See also CIBC Mortgages Inc. v. Computershare Trust Co. of Canada, 2015 ONCA 846, 342 O.A.C. 49.
[3] Pursuant to s. 110 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the appeal is transferred to Divisional Court. . Pavletic v. Pavletic
In Pavletic v. Pavletic (Div Court, 2023) the Divisional Court considers the discretionary test to transfer a proceeding to another court:[4] On the first issue, I would not transfer this matter to the Court of Appeal for Ontario.
[5] Where an appeal is brought in the wrong court, the court has the authority to transfer the appeal to the proper court: see Courts of Justice Act, s. 110(1). As stated in Bernard v. Fuhgeh, 2020 ONCA 529, at para. 15, whether to transfer the appeal is a matter of discretion, with reference to the factors set out in Dunnington v. 656956 Ontario Ltd. (1992), 1991 CanLII 7107 (ON SC), 9 O.R. (3d) 124 (Div. Ct.):a. the merits of the appeal;
b. whether the respondent will suffer undue prejudice as a result of further delay while the appeal is waiting to be heard; and
c. whether the appellant moved expeditiously after becoming aware that jurisdiction was in dispute. [6] I have considered each factor in turn and find that first, the respondent’s appeal has questionable merit. He is bound by prior court orders, which he did not seek to appeal. This included a finding of fact by the motion judge which wholly rejected the respondent’s claim of impecuniosity. These orders required that he variously pay ongoing support to his spouse and children and pay costs. The decision under appeal ordering his pleadings struck is an exercise of discretion, with reasons in support of the motion judge’s exercise of that discretion. Second, any prejudice arising from a further appeal to the applicant/respondent on the appeal is equally problematic, however it is the applicant/respondent on appeal who seeks a dismissal rather than a transfer. Finally, the respondent/appellant on appeal did not move expeditiously upon being put on notice that jurisdiction was in dispute: he was put on notice in January but did not take steps to either file an appeal to the Court of Appeal or to expeditiously terminate the proceedings before the Divisional Court on being put on notice. . Johnson v. Jensen
In Johnson v. Jensen (Div Court, 2023) the Divisional Court considered a (what must be a commercial) tenancy appeal from a Superior Court judge of a $47.3k monetary order and an order for vacation of the tenancy. This appeal was brought before the Divisional Court, though that court transferred it to the Court of Appeal [under CJA 110] on the reasoning that - while the Divisional Court had appellate jurisdiction for orders up to $50,000 - the Divisional Court did not have jurisdiction over the termination order [by virtue of CJA 6(1)(b)]. The court also noted that the Court of Appeal had supplementary Divisional Court jurisdiction [under CJA 6(2)] to hear the monetary order as well:[1] The Tenants have appealed the order of Vermette J. dated July 22, 2022. In that order, Vermette J. ordered the Tenants to pay the Landlords $47,300 in rental arrears and ordered them to vacate the unit by August 14, 2022. Both aspects of the order were final.
[2] The appeal was filed with the Divisional Court. The preliminary issue before us is whether the Divisional Court has jurisdiction over this appeal, given the fact that the order in question includes an eviction order. Pursuant to s. 6(1)(b) of the Courts of Justice Act an appeal of a final order of a judge of the Superior Court lies to the Court of Appeal. Section 19(1.2) of the Courts of Justice Act provides that the Divisional Court has jurisdiction to hear an appeal from the final order of a Superior Court judge involving an amount of less than $50,000. It does not give the Divisional Court jurisdiction over an eviction order.
[3] There is a dispute between the parties as to whether this appeal is an appeal from a portion of Vermette J.s order relating to the payment of arrears or just an appeal from the eviction order. It is not necessary for us to resolve this dispute as s. 6(2) of the Courts of Justice Act states that the Court of Appeal has jurisdiction “to hear and determine an appeal that lies to the Divisional Court… if an appeal in the same proceeding lies to and is taken to the Court of Appeal.” Thus, the Courts of Justice Act is clear; since the order in question includes an eviction order, this appeal lies to the Court of Appeal.
[4] For these reasons, pursuant to s. 110 of the Courts of Justice Act, we are ordering that this appeal be transferred to the Court of Appeal. . Sutton v. Sutton
In Sutton v. Sutton (Div Court, 2022) the Divisional Court set out the test for case transferrals where a party has 'proceeded in the wrong forum' [CJA 110] (although the court here had no choice as it lacked jurisdiction):[2] Justice Vallee granted the respondent’s application for retroactive and future spousal support and equalization among other things, in amounts well in excess of the monetary jurisdiction of the Divisional Court, as set out in s. 19 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[3] The panel drew the jurisdictional issue to the attention of the parties in advance of the hearing, and also asked for their position on whether this matter should be transferred to the Court of Appeal under s. 110 of the Courts of Justice Act.
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[8] Hammond v State Farm Mutual Automobile Insurance Co., 2011 ONSC 3192, at paras. 8-9, sets out the test under s.110 of the Courts of Justice Act. In short, three criteria are considered: 1) whether the appellant has a meritorious appeal; (2) whether the respondent will suffer undue prejudice as a result of further delay while the appeal is waiting to be heard by the Court of Appeal; and, (3) whether the appellant moved expeditiously once it was known that the jurisdiction was disputed.
[9] It is apparent that there has been confusion in communications about jurisdiction at both levels of court. This court has no jurisdiction and therefore cannot hear the appeal. Having considered s.110, we conclude that in the circumstances, the appeal should be transferred to the Court of Appeal, We request that the appeal be scheduled as soon as possible. The respondent is free to bring a motion to lift the stay of proceedings in that court. Costs should be left to the disposition of the appeal.
. Segura Mosquera v. Rogers Communications Inc.
In Segura Mosquera v. Rogers Communications Inc. (Ont CA, 2021) the Court of Appeal considered an application to transfer a Small Claims matter to the Superior Court:[12] The application judge carefully outlined the principles governing the transfer of cases from the Small Claims Court to the Superior Court. She noted that transfers are permitted only where a claim is not capable of being justly and fairly resolved using the procedures available in the Small Claims Court: Autometric Autobody Inc. v. High Performance Coatings Inc., 2014 ONSC 6073 (Div. Ct.), 328 O.A.C. 197, at paras. 9-10. She noted that the discretion to transfer should be exercised rarely: Crane Canada Co. v. Montis Sorgic Associates Inc., [2006] O.J. No. 1999 (Ont. C.A.), at para. 2. She noted that the onus is on the party seeking a transfer. Considerations in such cases include:a) the complexity of the litigation,
b) the role and importance of pre-trial discovery and expert evidence,
c) whether the case raises issues of general importance, and
d) the desire for a just and fair determination. Farlow v. Hospital for Sick Children, 2009 CanLII 63602 (ON SC), 100 O.R. (3d) 213 (S.C.), at para. 20, citing Crane, at para. 8, Vigna v. Toronto Stock Exchange (1998), 115 O.A.C. 393 (C.J.), and Livingston v. Ould, 2 C.P.C. 41 (Ont. S.C.).
[13] The application judge explained that the court’s discretion to transfer should be exercised sparingly because Superior Court actions expose the parties to higher costs of pre-trial discovery and trial. Further, if the application is made just before trial, it may result in duplication of work. Absent compelling reasons for a transfer, permitting a transfer may undermine the jurisdictional legitimacy of the Small Claims Court. . Pullano v. Hinder
In Pullano v. Hinder (Div Ct, 2021) the Divisional Court considered when to transfer a case from the Divisional Court to the Court of Appeal:[24] Where an appeal is brought in the wrong court, the court has the authority to transfer the appeal to the proper court: see Courts of Justice Act, s. 110(1). As Paciocco J.A. states in Bernard v. Fuhgeh, 2020 ONCA 529, at para. 15, whether to transfer the appeal is a matter of discretion, taking into account the following factors set out in Dunnington v. 656956 Ontario Ltd. (1992), 1991 CanLII 7107 (ON SC), 9 O.R. (3d) 124 (Div. Ct.):a. the merits of the appeal;
b. whether the respondent will suffer undue prejudice as a result of further delay while the appeal is waiting to be heard; and
c. whether the appellant moved expeditiously after becoming aware that jurisdiction was in dispute. . C.C. v. J.B.
In C.C. v. J.B. (Div Ct, 2021) the Divisional Court considered it's discretion to transfer a case to the Court of Appeal:[13] Counsel for RF asked us, rather than to transfer the appeal to the Court of Appeal, to dismiss it altogether under the three-factor test set out in Dunnington v. 656956 Ontario Ltd., (1991) 1991 CanLII 7107 (ON SC), 9 OR (3d) 124 (Div. Ct.). There, the Court held that a transfer is discretionary based on the following questions:(1) Does the appellant have a meritorious appeal?
2) Will the respondent suffer undue prejudice while the appeal is waiting to be heard?
3) Has the appellant moved expeditiously once it was known that jurisdiction was disputed?
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