Mar 4, 2020

Jurisdiction of Appellate Courts: Proceeding In Wrong Forum

2503257 Ontario Ltd. v. 2505304 Ontario Inc. (Good Guys Gas Bar), 2020 ONCA 149 (CanLII)

Keywords: Jurisdiction; Order granting vacant possession; commercial tenancies dispute; Courts of Justice Act, R.S.O. 1990, c. C.43

Synopsis:

In the context of an ongoing commercial tenancies matter, the Court of Appeal for Ontario alerts the parties to a potential problem: does the Court have jurisdiction to hear an appeal from an Order granting “vacant possession”? The Senior Legal Officer suggests the parties bring a motion to transfer the appeal to Divisional Court. The parties argue the Court of Appeal has jurisdiction.

The Court of Appeal disagrees, finding no impediment to the Divisional Court’s jurisdiction to hear the appeal. The appeal is transferred pursuant to s. 110(1) of the Courts of Justice Act.

Importance:

This case serves as an important reminder that appeals are statutory. As such, it is always good practice to clearly identify the appellate court in which the matter can be adjudicated. Interestingly, even where an appellate court has jurisdiction to adjudicate some aspects of a matter, it may be that such jurisdiction does not extend to all aspects.

In this case, although the Court of Appeal had previously refused a stay of the Order under appeal in this case, the Court determined that this was “ancillary to the order granting vacant possession”. (See para. 3).

The Court of Appeal decision reflects the language provided at s. 78 (1) of the Commercial Tenancies Act, R.S.O. 1990. C. L.7, specifically that: “[a]n appeal lies to the Divisional Court from the order of the judge granting or refusing a writ of possession.”

For this reason, since the appeal was as against an application judge’s decision granting vacant possession, Court of Appeal concluded that the appeal must be made to the Divisional Court. (See para. 4).

The mechanism to affect the transfer is s. 110(1) of the Courts of Justice Act, which provides:

Proceeding in wrong forum

110 (1) 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.

It is important to note that this mechanism involves an exercise of the Court’s discretion. In other words, there may be circumstances in which a Court is not prepared to make the Order. That being said, s. 110(2) provides that, once the proceeding is transferred, it continues “as if it had been commenced in that court”.

Counsel for the Appellant: Bryan Fromstein and Fabio Longo (Longo Lawyers, Toronto)

Counsel for the Respondent: Bernie Romano and Jordan Nussbaum (Romano Law Office, Toronto)