Editor’s Note: Corrigendum released on March 10, 2008. Original judgment has been corrected with text of corrigendum appended.
COURT FILE NO.: 75/08
DATE: 20080307
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT MOTIONS
RE: Walter Kambulow v. Toronto Airport Christian Fellowship et al.
BEFORE: Mr. Justice Ferrier
COUNSEL: Howard W. Winkler and Pamela Miehls for the Defendants
UNREPRESENTED: Walter Kambulow
HEARD: February 29, 2008
E N D O R S E M E N T
[1] The defendants have brought a motion in Toronto for leave to appeal the interlocutory order of Clarke J. delivered on January 15, 2008 at Milton.
[2] This Court raised with counsel, a preliminary question concerning whether the motion is properly returnable in the Toronto Region, rather than the Central West Region.
[3] For the reasons which follow, I am of the view that the motion for leave must be brought in Central West Region.
Background
[4] The defendants moved before Clarke J. sitting in Milton, for an order striking the statement of claim in whole or in part, in relation to each of the defendants; and in the alternative for an order transferring the action to Toronto and consolidating it with a Toronto action brought by the defendants against the plaintiff.
[5] Clarke J. dismissed the motion to strike, but transferred the action to Toronto and ordered it consolidated with the Toronto action.
[6] The defendants move for leave to appeal the decision in reference to striking the statement of claim, but not the order transferring the action to Toronto and consolidating it; the action has now been so transferred.
[7] To determine where this motion for leave should be brought, it is necessary to embark upon a review of various provisions of the Courts of Justice Act, R.S.O. 1990, c.C.43 ("CJA"), and the Rules of Civil Procedure, R.R.O. 1990, Reg.194, as amended, (the "Rules").
[8] An appeal lies to the Divisional Court from an interlocutory order of a judge of the Superior Court of Justice, "with leave as provided in the rules of court." CJA s.19(1)(b).
[9] Section 20(1) of the CJA provides:
- (1) An appeal to the Divisional Court shall be heard in the region where the hearing or other process that led to the decision appealed from took place, unless the parties agree otherwise or the Chief Justice of the Superior Court of Justice orders otherwise because it is necessary to do so in the interests of justice.
[10] Here, the parties have not agreed otherwise and the Chief Justice has not ordered otherwise.
[11] Thus, the appeal to the Divisional Court, if leave is granted, shall be heard in Central West Region.
[12] I note that s-s.(2) of s.20 provides:
(2) Any other proceeding in the Divisional Court may be brought in any region.
[13] The word "proceeding" is not defined in the CJA, but a reading of various provisions of the definition section appears to indicate that a "proceeding" in s.20 does not include a motion.
Definitions
- In this Act,
'action' means a civil proceeding that is not an application and includes a proceeding commenced by,
(a) claim,
(b) statement of claim,
(c) notice of action,
(d) counterclaim,
(e) crossclaim,
(f) third or subsequent party claim, or
(g) divorce petition or counterpetition; ('action')
'application' means a civil proceeding that is commenced by notice of application or by application; ('requête')
'motion' means a motion in a proceeding or an intended proceeding; ('motion')
[15] As well, in s.21, a distinction is made between a proceeding and a motion:
- (1) A proceeding in the Divisional Court shall be heard and determined by three judges sitting together. R.S.O. 1990, c.C.43, s. 21 (1).
Idem
(2) A proceeding in the Divisional Court may be heard and determined by one judge where the proceeding,
(a) is an appeal under clause 19 (1) (c);
(b) is an appeal under section 31 from a provincial judge or a deputy judge presiding over the Small Claims Court; or
(c) is in a matter that the Chief Justice of the Superior Court of Justice or a judge designated by the Chief Justice is satisfied, from the nature of the issues involved and the necessity for expedition, can and ought to be heard and determined by one judge. R.S.O. 1990, c. C.43, s. 21 (2); 1996, c. 25, s. 9 (14).
Idem, motions
(3) A motion in the Divisional Court shall be heard and determined by one judge, unless otherwise provided by the rules of court.
Idem
(4) A judge assigned to hear and determine a motion may adjourn it to a panel of the Divisional Court.
Idem
(5) A panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion. R.S.O. 1990, c.C.43, s.21(3-5).
[16] Furthermore, if the word "proceeding" in s. 20(2) were to include a "motion", this would produce the impractical result, for example, that a motion for leave to appeal an order made in, say, London, could be made returnable in Thunder Bay, without the consent of the parties.
[17] I also note that the transfer of the action to Toronto does not result in the appeal being heard in Toronto. Rather, per s.20(1) the appeal is still heard in Central West.
[18] Nevertheless, in the context of other rules and sections of the CJA, a motion has been held to be a "proceeding".
[19] For example: In Ontario (Attorney-General) v. Ballard Estate, [1997] 10 CPC (4th) 114 (OCJ General Division) Ground J. held that in rule 13.01 a "proceeding" included a motion; in Imoney Corp. v. Quebecor Communications Inc., [2002] O.J. No. 4309 (S.C.J.), Hoy J. held that a motion for summary judgment is a "proceeding" within the meaning of s.106 of the CJA.
[20] Turning then to the Rules concerning where motions are to be heard I begin with rule 37.03(1):
37.03(1). All motions shall be heard in the county where the proceeding was commenced or to which it has been transferred under rule 13.1.02, unless the court orders otherwise.
[21] The words "proceeding" and "motion" are defined in rule 1.03(1):
'proceeding' means an action or application;
'motion' means a motion in a proceeding or an intended proceeding;
[22] The Divisional Court is an "appellate court" per the definition in rule 1.03(1).
[23] Although there does not appear to be a clear rule that prescribes where a motion for leave shall be heard, the rules are clear concerning where the motion materials are to be filed, and how a date is fixed for the hearing of the motion for leave.
[24] Rule 61.03 requires the notice of motion with proof of service to be filed in the office of the Registrar.
[25] The "Registrar" is the registrar in the regional centre of the region where the appeal is to be heard: rule 61.02(b).
[26] As noted above, in this case that is Central West Region, and in particular, the office of the Registrar in Brampton.
[27] The Registrar (in this case, in Brampton) shall fix a date for the hearing of the motion: rule 61.03.
[28] It would make no sense to interpret the rules to mean that the motion materials are to be filed in Brampton and that the Brampton registrar fixes a date for a hearing of the motion in Toronto.
[29] The only reasonable interpretation of all of the foregoing provisions is that a motion for leave to appeal to the Divisional Court from an interlocutory order of a judge of the Superior Court of Justice, must be filed and heard in the region provided for in s.20(1) of the CJA – namely, where the appeal is to be heard.
[30] Order to go transferring the motion for leave to Central West Region.
Ferrier J.
Released: March 7, 2008
Cc
COURT FILE NO.: 75/08
DATE: 20080307
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT MOTIONS
RE: Walter Kambulow v. Toronto Airport Christian Fellowship et al.
BEFORE: Mr. Justice Ferrier
COUNSEL: Howard W. Winkler and Pamela Miehls for the Defendants
UNREPRESENTED: Walter Kambulow
HEARD: February 29, 2008
CORRIGENDUM
Paragraph 30 of the Reasons released March 7, 2008 is deleted and the following substituted therefor:
[30] Order to go transferring the motion for leave to Central West Region.
Ferrier J.
Released: March 7, 2008
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