|
Appeals - Combining Appeals From Different Courts (2). Eyelet Investment Corp. v. Song
In Eyelet Investment Corp. v. Song (Div Court, 2024) the Divisional Court considered an interesting ONHWPA arbitration mess, where the arbitrator asserted a radical degree of independence that did not accord with the views the appeal judges involved. An arbitrator-sympathetic characterization is that of cultural differences between the judicial and the arbitration 'benches'. It's a useful and even entertaining read, although at the end the CA puts it's foot down firmly on the side of law.
Here, the court - on doubt being cast on the ONHWPA appeal jurisdiction of the lower court decision - would have transferred the case to itself and upheld it, if required:The Arbitration on Liability
[4] Under the terms of the agreements of purchase and sale, the parties agreed to resolve disputes by arbitration. This is a requirement imposed by Tarion Warranty Corporation in its standard forms applicable to freehold new home purchases in accordance with a regulation under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31.
....
Jurisdiction
[62] An astute reader might have wondered why the first appeal from the Arbitrator went before O’Brien J. as a single judge of the Superior Court of Justice while this appeal came before a panel of the Divisional Court.
[63] Under s. 45 of the Arbitration Act, 1991, and the definitions in s. 1 of that statute, an appeal from a domestic arbitration is taken to the Superior Court of Justice. But s. 17(4) of the Ontario New Home Warranties Plan Act provides:Arbitration
(4) Every agreement between a vendor and prospective owner shall be deemed to contain a written agreement to submit present or future differences to arbitration, subject to appeal to the Divisional Court, and the Arbitration Act, 1991 applies.
[64] As this is an appeal from an arbitration provision in an agreement referred to in s. 17(4), an appeal lies to this court. As the appeal is subject to the Arbitration Act, 1991 and that statute provides for appeals to the Superior Court of Justice, it is not clear to me that the Superior Court is necessarily deprived of its jurisdiction to hear an appeal under s. 45 of that statute.
[65] Even if one accepts that the appeal before O’Brien J was taken to the wrong court and that the Superior Court of Justice had no jurisdiction to hear the appeal, it does not change the outcome. Despite the Arbitrator deeming of agreement by the parties, it seems to me that a court generally cannot obtain jurisdiction by consent. That would mean that O’Brien J. lacked jurisdiction to hear the appeal before her.
[66] If the appeal before O’Brien J. is a nullity, then so too is the subsequent award by the Arbitrator taken pursuant to the referral back to him under s. 37 of the Arbitration Act, 1991. In that case, the final award by the Arbitrator must be set aside in any event.
[67] But that result would leave the initial award on liability extant pending an appeal in this court. No one suggested that the initial award should be revived. The contract analysis by the Arbitrator cannot stand on any standard of review. It was wrong, unreasonable, legally unintelligible, and palpably so. If O’Brien J. lacked jurisdiction to hear the appeal before her, I would transfer it to this proceeding and allow the appeal as she did. . Wakely v. Hutton
In Wakely v. Hutton (Div Court, 2023) the Divisional Court considered a messy appeal route issue where the appellant had filed in the Divisional Court. The case was ulimately transferred to the Court of Appeal:[3] As discussed at the case conference, this court does not have jurisdiction to hear an appeal from a partial summary judgment dismissing claims that, had the claim been successful, would amount to a sum of over $50,000.[1] If Mr. Wakely is successful in his trust interest in the property, the interest is worth over $50,000.
[4] The Divisional Court does have jurisdiction to hear the appeal of the order for the sale of the jointly owned property,[2] but this appeal is tied to Mr. Wakely’s claim that Ms. Hutton holds her 50-percent interest in the property in trust for Mr. Wakely. Pursuant to s. 6(2) of the CJA, the Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal.
[5] Section 110(1) of the CJA provides that where 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. Having considered the circumstances of this case, this matter should be transferred to the Court of Appeal.
[6] Mr. Wakely was referred to s. 110(2), which provides that a proceeding that is transferred to another court under subsection (1) shall be titled in the court to which it is transferred and shall be continued as if it had been commenced in that court. Therefore, his efforts in preparing his material for the Divisional Court have not gone to waste. . Carcillo v. Ontario Major Junior Hockey League
In Carcillo v. Ontario Major Junior Hockey League (Ont CA, 2023) the Court of Appeal notes a requirement of the operation of CJA 6(2) ['Combining of appeals from other courts' (to the CA)]:[12] The appellants do not agree that the appeal of the s. 7 order lies to the Divisional Court but say that, even if it does, the s. 7 order is so inextricably linked to the dismissal of the certification motion that this court ought to take jurisdiction over it under s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43. That route would then permit a single judge of this court to grant a stay pursuant to r. 63.02(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[13] The respondents say that s. 6(2) of the Courts of Justice Act cannot be relied upon because the appellants require leave to appeal in the Divisional Court and this court will not exercise its authority under s. 6(2) unless and until leave is granted. On that point, the respondents are correct: Cole v. Hamilton (City) (2002), 2002 CanLII 49359 (ON CA), 60 O.R. (3d) 284 (C.A.). . Voreon Inc. v. Matas Management Services Inc.
In Voreon Inc. v. Matas Management Services Inc. (Ont CA, 2023) the Court of Appeal cites CJA 6(2), here for the merging of an appeal of an interlocutory order (without leave) with a final order appeal:[107] Although the portion of the order dismissing the claim to set aside the transfer of the parking unit and the storage unit is not a final order, where, as here, an appeal in the same proceeding lies and is taken to this court, the court has jurisdiction to hear and determine the appeal from an interlocutory order, pursuant to s. 6(2) of the Courts of Justice Act. . Kong v. Au
In Kong v. Au (Div Court, 2023) the Divisional Court considered a situation where a party sought to hear corporate oppression appeals respecting two corporations, one under the OBCA and the other under the CBCA, together - despite the fact that they have different appeal routes:[2] There is a jurisdiction issue regarding this appeal. One of the two companies at issue is an Ontario corporation – 1802606 Ontario Inc – incorporated under the Business Corporations Act, R.S.O. 1990, c. B.16 (“OBCA”). The other company – Taknology (Canada) Inc. – is a Canada Business Corporations Act, R.S.C. 1985, c. C-44 (“CBCA”). The appeal materials seek to pursue an appeal under both statutes and seek interrelated remedies.
[3] The appeal routes under the above statutes are different. An appeal under the OBCA is to the Divisional Court. However, an appeal under the CBCA is to the Court of Appeal.
[4] The Court raised this jurisdiction issue with the parties last week. It was not raised by either side of this dispute prior to that time.
[5] This Court has the discretion to transfer a matter that has been brought in the wrong court to the proper court, under s. 110 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Relevant factors include the merits of the proposed appeal, whether the respondents will suffer undue prejudice as a result of further delay while the appeal is waiting to be heard, and whether the appellant moved expeditiously after becoming aware that jurisdiction was in dispute.
[6] In this case, we must also consider the issue of divided jurisdiction. The issues on this appeal relate to both companies and are intertwined. The Divisional Court cannot hear or transfer both appeals. However, the Court of Appeal has jurisdiction, under s. 6(2)(3) of the Courts of Justice Act, to transfer a matter already commenced in the Divisional Court if an appeal in the same proceeding lies and is taken to the Court of Appeal. Upon transfer of the CBCA appeal to the Court of Appeal, the appellant could seek an order from the Court of Appeal under s. 6 and potentially have the whole matter considered together. The appellant intends to do so. That relief is not available in the Divisional Court.
[7] Having considered the submissions and cases put forward by both sides of this dispute, we conclude that the CBCA appeal should be transferred to the Court of Appeal. The relevant statutory provisions regarding appeal rights were expressly stated in the appeal materials but neither counsel identified the issue, accounting for most of the delay. With respect to prejudice, the respondents rely on their legal costs incurred and the costs order below being automatically stayed. The legal costs can still be claimed in the ongoing proceedings. We are not persuaded that there is significant prejudice. As for the merits, they should be heard.
[8] The CBCA appeal is therefore transferred to the Court of Appeal. The OBCA appeal is adjourned to permit the appellant to seek relief from the Court of Appeal under s. 6 of the Courts of Justice Act. . Davis v. Amazon Canada Fulfillment Services, ULC
In Davis v. Amazon Canada Fulfillment Services, ULC (Ont CA, 2023) the Court of Appeal considers transferring a Divisional Court appeal, and joining that appeal with a related pre-existing appeal already in the Court of Appeal, to that latter court [under CJA 6(2) and 6(3)]:Transfer of the Certification Decision Appeal and Combining the Appeals
(i) Whether a Transfer Will be Ordered Involves an Exercise of Discretion Animated by Factors Relevant to the Administration of Justice
[7] Sections 6(2) and (3) of the CJA provide:(2) The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal.
(3) The Court of Appeal may, on motion, transfer an appeal that has already been commenced in the Divisional Court or the Superior Court of Justice to the Court of Appeal for the purpose of subsection (2). [8] The fact that the one appeal lies to this court and another to the Divisional Court, and that both are in the same proceeding, are necessary but not sufficient conditions to make an order for transfer. Such an order is discretionary and may be refused even if the parties consent to it. The overriding consideration is whether separate appeals in different courts, or combining them in this court, better comports with the administration of justice. In Cavanaugh v. Grenville Christian College, 2013 ONCA 139, 360 D.L.R. (4th) 670, at para. 87, this court stated:The jurisdiction to join appeals in s. 6(2) is, however, discretionary and not mandatory. There will be cases when factors relevant to the administration of justice are sufficiently strong to override the wishes of the parties to the appeal and any efficiencies achieved by joinder. [9] Relevant factors to whether joinder is appropriate include the risk of inconsistent results, the extent of overlap in the matters to be addressed in the two appeals, and whether the different issues in the two appeals contraindicates joinder: Cavanaugh, at paras. 86 and 88-92. . 2650971 Ontario Inc. v. Shameti
In 2650971 Ontario Inc. v. Shameti (Ont CA, 2021) the Court of Appeal held that it didn't have jurisdiction to hear an appeal that was clearly designated to the Divisional Court, even though some of the orders below were final and thus the appeal route for them lay to the Court of Appeal. The court did not mention CJA 6(2), which deals with this situation, probably because no Court of Appeal matters were appealed - only Divisional Court-routed orders. The court makes the useful comment that parties cannot "confer jurisdiction on this court by agreement" (the respondent had no objection to the matter being heard at the higher court) [para 7].CJA 6(2) The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal. ....[4] The disposition of this appeal turns on a preliminary jurisdictional issue. Section 7 of the Partition Act, R.S.O. 1990, c. P.4, provides that “[a]n appeal lies to the Divisional Court from any order made under this Act.” On August 3, 2021, the Executive Legal Officer of this court alerted the parties to the possible jurisdictional issue that s. 7 of the Partition Act may apply to this appeal such that the appeal lies to the Divisional Court, and asked them to be prepared to address the preliminary issue concerning this court’s jurisdiction to hear the appeal.
[5] The appellants maintain that this court has jurisdiction to hear this appeal because the application judge’s judgment finally disposed of the application. The order for sale of the investment property was only part of the relief sought by the respondents. As the issue of partition and sale was intertwined with other issues that were finally disposed of, this court has jurisdiction to hear the appeal.
[6] The respondents acknowledge that this appeal lies within the jurisdiction of the Divisional Court; however, they have no objection if this court agrees to hear the appeal.
[7] We do not agree that this court has jurisdiction to hear this appeal. The parties cannot confer jurisdiction on this court by agreement.
[8] Section 7 of the Partition Act plainly stipulates that an appeal from an order made under the Act lies to the Divisional Court. The judgment under appeal clearly ordered the sale of the parties’ investment property pursuant to the Partition Act. This remedy was expressly sought in the respondents’ application. That the respondents also included other issues and heads of relief in their application does not alter the fact that the judgment made was with respect to matters that fall squarely under the Partition Act: Webster v. Groszman, 2021 ONCA 55, at para. 8.
[9] As a result, in accordance with s. 7 of the Partition Act, an appeal from the judgment lies to the Divisional Court. This court has no jurisdiction to hear the appeal.
|
