Citation: Langenfeld v. HMQ 2015 ONSC 5294

DIVISIONAL COURT FILE NO.: 209/15

DATE: 20150824

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: KRISTIAN ROLF LANGENFELD v. HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

BEFORE: NORDHEIMER J.

COUNSEL: K. Langenfeld in person/moving party N. Laeeque, for respondent, Her Majesty the Queen

HEARD at Toronto: written submissions

ENDORSEMENT

[1] Mr. Langenfeld seeks leave to appeal from the order of Wright J. dated April 16, 2015 in which the motion judge refused Mr. Langenfeld’s request to transfer his current proceeding in the Small Claims Court to the Superior Court of Justice.

[2] As a preliminary issue, the respondent asserts that the moving party is in the wrong forum. The respondent asserts that the order of the motion judge is a final order and, consequently, any appeal from the motion judge’s order lies to the Court of Appeal. The respondent refers to the decision in Leo Alarie and Sons Ltd. v. Ontario (Minister of Natural Resources) (2000), 48 O.R. (3d) 204 (C.A.) in support of its position.

[3] I cannot see any basis for distinguishing the result in Alarie and the situation that is before me. The motion judge refused to allow the action to be transferred. That conclusion finally disposed of the issue raised by the moving party’s motion. This is not a situation where a party sought to transfer a proceeding from one region to another. Rather, the moving party sought to move his proceeding from one court to another court. While the Small Claims Court is a branch of the Superior Court of Justice, it is still a separate court under s. 22 of the Courts of Justice Act, R.S.O. 1990, c. C.43. While the order in Alarie had granted a transfer, as Morden J.A. pointed out, whether the order was refused or granted, the finality of the order is the same.

[4] I will say that it is not clear to me how the moving party was able to seek his relief by way of motion as opposed to by way of application. There was no existing proceeding in the Superior Court of Justice. Rather, as best as I can determine, it seems that the moving party simply brought a motion in the Superior Court of Justice using the Small Claims Court file number. Rightly or wrongly, I understand that this is the process that the court administrators permit for the purposes of seeking this form of relief. In any event, whether the relief was sought by way of motion or application, it appears that the principle from Alarie would still apply – see Denison Mines Ltd. v. Ontario Hydro (2001), 56 O.R. (3d) 181 (C.A.).

[5] Although the issue was not raised, but recognizing that the moving party is unrepresented, I considered whether s. 19 of the Courts of Justice Act, R.S.O. 1990, c. C.43 would still give the Divisional Court jurisdiction over this matter. However, I do not see that s. 19 covers this situation. The relief sought by the moving party did not involve a claim for money. It sought relief by way of a transfer of the proceeding so that declaratory relief could be sought, along with some amendments to the statement of claim. It seems to me, therefore, that this rather unique situation does not fall within the jurisdictional provisions contained in s. 19.

[6] Based on the decision in Alarie, I have concluded that the order in issue is a final order and an appeal only lies to the Court of Appeal under s. 6(b) of the Courts of Justice Act. It would also appear, consequently, that leave to appeal is not required. As a result, and pursuant to the authority contained in s. 110 of the Courts of Justice Act, I order this matter transferred to the Court of Appeal for Ontario.

[7] In the circumstances, I would make no order as to the costs of this motion.

NORDHEIMER J.

DATE: August 24, 2015