Fatma Uyuklu

The appellants sought an order under s. 110 of the Courts of Justice Act to transfer their appeal from the Court of Appeal for Ontario to the Divisional Court and to extend the time for serving and filing a notice of appeal.

The appeal arose from a construction contract dispute where the respondent contractor brought a lien action under the Construction Act after the appellants refused to pay the final invoice.

The trial judge awarded damages in favour of the respondent.

The appellants' counsel had filed the notice of appeal in the wrong court.

The motion judge found that the appellants satisfied the three criteria for transfer: arguable grounds of appeal, manageable prejudice to the respondent, and expeditious action once the jurisdictional error was discovered.

The appeal was transferred to the Divisional Court with an extended deadline for filing the notice of appeal.

The defendants brought a motion to strike the plaintiff's amended statement of claim, which sought damages for trespass, nuisance, intentional infliction of mental suffering, and harassment arising from a neighbour dispute.

The court struck the novel claim for harassment without leave to amend, finding no realistic prospect that such a tort would be recognized in this context.

The court also struck a claim for damages related to a hypothetical future move as frivolous.

However, the court declined to strike the entirety of the claims for trespass, nuisance, and intentional infliction of mental suffering, finding it was not plain and obvious that they would fail, particularly given the suspension of limitation periods during the COVID-19 pandemic.

The motion was granted in part.