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Transfer to the Court of 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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