Shinder v. Shinder: Court of appeal for Ontario refuses to transfer motion seeking leave to appeal to the divisional court

In Shinder v. Shinder, Justice Nordheimer, sitting in chambers, refused to transfer to the Court of Appeal a motion seeking leave to appeal to the Divisional Court, as the Court of Appeal does not have jurisdiction to hear such a motion. In any event, Justice Nordheimer also refused to grant the requested relief on the basis that it would require him to determine whether the order was appealable to the Court of Appeal, which is a question for a panel, not a judge sitting in chambers.

Background

The appellant commenced an appeal in the Court of Appeal from an order granting partial summary judgment. Because of uncertainty over whether the order was final (and appealable as of right to the Court of Appeal) or interlocutory (and appealable with leave to the Divisional Court), the appellant also filed a motion for leave to appeal in the Divisional Court. He then brought a motion at the Court of Appeal for an order transferring the leave motion to the Court of Appeal.

No jurisdiction to transfer leave motion

Justice Nordheimer dismissed the motion because he found that the Court of Appeal or, in the alternative, he as a single judge of that Court could not grant the requested order:

[3] There are two problems with the relief that the appellant seeks.  First, this court does not have jurisdiction to determine a motion for leave to appeal that is brought before the Divisional Court. Section 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 permits this court to hear an appeal that lies to the Divisional Court, but only where there is an appeal in the same proceeding in this court. However, an appeal does not lie to the Divisional Court unless and until leave to appeal has been granted: Waldman v. Thomson Reuters Canada Ltd., 2015 ONCA 53.

[4] Second, even if I had jurisdiction to transfer the matter from the Divisional Court to this court, in order to make that order, I would have to decide that the order in question is a final order and properly appealed to this court. In my view, it is not appropriate for a motions judge to make that determination. That issue, which is squarely raised by this motion, is a question of jurisdiction and that question is properly determined by the panel hearing the appeal or, alternatively, by a panel on a motion to quash, if such a motion is brought by the respondent.

The appellant relied on an unreported decision of Justice Epstein, sitting in chambers, to argue that a single judge of the Court of Appeal could decide the jurisdiction issue. Justice Nordheimer disagreed because Justice Epstein appeared to have proceeded on the basis of concessions made by counsel and explicitly noted that she did not have to decide the jurisdiction issue.

Justice Nordheimer acknowledged the burden on parties where the jurisprudence is unclear on the proper appeal route in civil matters, and observed that the Honourable Colter Osborne had raised the possibility of amending the Courts of Justice Act and “jettison[ing] the final/interlocutory distinction” in his Civil Justice Reform Project. Such reforms have yet to occur. In the meantime, only a panel of the Court of Appeal could definitively rule on the Court’s jurisdiction.

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