Court File and Parties

CITATION: A.W. v. L.W., 2012 ONSC 5992

COURT FILE NO.: 005/12

DATE: 2012-10-23

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: A.W., v. L.W.

BEFORE: Justices Aston, Lax and Swinton

COUNSEL: A.W. in person Lorna M. Yates, for the Responding Party (Applicant)

HEARD AT TORONTO: October 22, 2012

ENDORSEMENT

The Court:

[1] The moving party A.W. seeks leave to appeal a decision of Jennings J. denying him leave to appeal the interlocutory order of D. Wilson J. dated December 20, 2011.

[2] The moving party sought to appeal the decision of Jennings J. to the Court of Appeal. On August 28, 2012, Ducharme J.A. ordered that the appeal be heard by a three judge panel of the Divisional Court.

[3] Section 19(1) of the Courts of Justice Act, R.S.O. 1990, c. C.34 provides for an appeal to this Court from a final order of a judge of the Superior Court of Justice if the monetary limits in s. 19(1.1) and (1.2) are satisfied. An appeal also lies to a panel from an interlocutory order of a judge of the Superior Court of Justice with leave (s. 19(1)(b)). In Toronto, these leave motions are heard by a judge of the Divisional Court sitting as a judge of the Superior Court (rule 62.02(1.1)).

[4] With all due respect to Ducharme J.A., the Divisional Court has no jurisdiction to hear this as a panel appeal. The Court of Appeal in Mignacca v. Merck Frosst Canada Ltd. (2009), 2009 ONCA 393, 96 O.R. (3d) 164 stated that the appropriate route to seek leave to appeal from the refusal to grant leave to appeal an interlocutory order to the Divisional Court is to again seek leave to appeal pursuant to s. 19(1)(b) and the rules of court (at paras. 21 and 24). Such leave should be sought from a judge of the Superior Court of Justice. See also, Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 29 O.R. (3d) 612 (C.A.) at para. 37.

[5] Accordingly, and with the consent of the parties, this matter is to be considered as a motion for leave to appeal the decision of Jennings J. and will be determined by one member of this panel sitting as a Superior Court judge pursuant to rule 62.02(1.1).

Aston J.

Lax J.

Swinton J.

Released: October 23, 2012