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Transfer to the Court of Appeal

. 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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