Court of Appeal for Ontario

Date: 2019-10-25 Docket: C66580

Judges: Hoy A.C.J.O., van Rensburg and Roberts JJ.A.

Between

John (Jack) Wright Applicant (Appellant)

and

Jacqueline Strauss and Anne Urbanek on their own behalf and as Trustees of the Wright Family Trust Respondents (Respondents)

Counsel

Gregory M. Sidlofsky and Matthew M.A. Stroh, for the appellant

Andrew Finkelstein, for the respondents

Heard: October 8, 2019

On appeal from the order of Justice Michael A. Penny of the Superior Court of Justice, dated January 15, 2019.

Reasons for Decision

[1] The appellant appeals from the order ("Order") of the motion judge, dismissing the application he commenced in 2016 against his daughters, on their own behalf and as trustees of the Wright Family Trust ("Trust"). For the reasons that follow, we conclude that this court does not have jurisdiction to hear this appeal, and we order that this appeal be transferred to the Divisional Court.

[2] The appellant also appealed from a second order ("Second Order") of the motion judge, made at the same time, involving the same parties, and addressed in the same set of reasons as the Order. The appeal of the Second Order was properly made to this court and we dismissed that appeal: Wright v. Urbanek, 2019 ONCA 823.

[3] Pursuant to s. 255 of Ontario's Business Corporations Act, R.S.O. 1990, c. B.16, as amended, ("OBCA"), an appeal lies to the Divisional Court from an order made under the OBCA. The Order finally resolved issues in an oppression application brought under the OBCA and the proper route of appeal is to the Divisional Court: Ontario Securities Commission v. McLaughlin, 2009 ONCA 280, 248 O.A.C. 54, at para. 16.

[4] While the appellant concedes that an appeal from the Order would normally be to the Divisional Court, he asserts that s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, and r. 6.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, permit this court to hear his appeal of the Order. Alternatively, he argues that this is one of those exceptional cases where it would be appropriate for Chief Justice of the Superior Court of Justice to designate this court as a panel of the Divisional Court for the purpose of hearing and determining the appeal.

[5] We reject these arguments.

[6] First, s. 6(2) of the Courts of Justice Act permits this court to hear and determine an appeal that lies to the Divisional Court if an appeal in the same proceeding lies to and is taken to this court. But the two appeals are not in the same proceeding. Although the motion judge released only one set of reasons, he issued two orders for two factually related but legally distinct proceedings, each with its own originating process: the Order, striking a notice of application regarding the transfer of a mortgage from a family company to the Trust; and the Second Order, striking a statement of claim challenging the validity of the Trust.

[7] Second, r. 6.01(1) provides that "[w]here two or more proceedings are pending in the court" the court may, in the circumstances set out in that rule, order that the proceedings be heard together. However, this rule applies to proceedings in the same court, not proceedings in different courts: Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839, at para. 11.

[8] Finally, while the combined effect of ss. 13 and 18 of the Courts of Justice Act enables three judges of the Court of Appeal to sit as a panel of the Divisional Court with the consent of the Chief Justice of the Superior Court of Justice and the Chief Justice of Ontario, as Trotter J.A. notes in Tomec, at para. 14, this court rarely reconstitutes itself as the Divisional Court. Doing so involves bypassing the Divisional Court. We are not persuaded that this is one of those rare instances where this court should reconstitute itself as the Divisional Court.

[9] This is not a case where the jurisdictional issue was noticed only after the appeal had been argued: see Villa Verde L.M. Masonry Ltd. v. Pier One Masonry Inc., 54 O.R. (3d) 76 (C.A.), at para. 12. Here, the court notified the parties of the potential jurisdictional problem nearly four months before the scheduled hearing date and advised them that it is not this court's practice to take jurisdiction to hear an appeal if it concludes that the appeal was brought in the wrong court. The parties made no submissions to the court in response to the court's letter notifying the parties of the potential jurisdiction problem.

[10] Moreover, it is not clear that the delay resulting from a transfer of the appeal of the Order to the Divisional Court will result in any "real" delay. In oral submissions, counsel for both parties agreed that if the appellant prevailed on his appeal from the Order, his application should be stayed pending completion of the steps remaining to be taken pursuant to the order of Conway J., dated October 7, 2016, made in the oppression application brought against the appellant by his daughters.

[11] In the result, we order that this appeal from the Order be transferred to the Divisional Court.

"Alexandra Hoy A.C.J.O."

"K. van Rensburg J.A."

"L.B. Roberts J.A."