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.
