Court File and Parties
CITATION: Asghar v. Ontario Real Estate Association, 2017 ONSC 7133
DIVISIONAL COURT FILE NO.: 217/16 DATE: 2017/11/28
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, SACHS and LeMAY JJ.
BETWEEN:
SAJJAD ASGHAR
Sajjad Asghar, acting in person
Appellant
– and –
ONTARIO REAL ESTATE ASSOCIATION
Mark Crane, for the Respondent
Respondent
HEARD at Toronto: November 28, 2017
Oral Reasons for Judgment
KITELEY J. (Orally)
[1] This is an appeal from the decision of Sanderson J. dated March 9, 2016 in which she granted the defendant’s motion for summary judgment and dismissed the action.
[2] The appeal was scheduled to be heard November 28, 2017. In the Statement of Claim, the appellant asked for damages of $1,000,000.00. Pursuant to s. 19(1.2)(c) of the Courts of Justice Act , the Divisional Court has jurisdiction where the final order which is the subject of the appeal is dismissal of an action for a claim of not more than $50,000.00.
[3] On November 21, 2017, I directed the Divisional Court staff to bring to the attention of the appellant and counsel for the respondent that the jurisdiction of this Court is limited to not more than $50,000.00. I asked the Divisional Court staff to inquire of Mr. Asghar and counsel for the respondent if they were satisfied that the Divisional Court has jurisdiction.
[4] On the following day, I received an email communication from the Divisional Court staff member who had followed my instructions and I am going to read from the email that she gave to the members of this panel. These are the responses:
From Mr. Asghar: Matter cannot go ahead since it is not the jurisdiction of this court. Full position will be motioned. Appeal cannot be dismissed and the respondent is free to take any action. However based on this court’s decision, this appellant will not attend since the respondent is acting in bad faith and currently this court does not have the jurisdiction to assess and dismiss the matter until finalized. This appellant trusts that the worthy court will understand this.
From Mr. Crane: Please note that the appellant for OREA wishes to briefly speak to this matter at our currently scheduled time on November 28, 2017. In light of Mr. Asghar’s response as noted below, I anticipate receiving instructions to seek to have the appeal dismissed and to make brief submissions relating to costs.
I incorrectly identified OREA in my below email, OREA is obviously the respondent in this matter. I await further direction if required.
[5] Court convened this morning at 10:00 a.m. and the appellant was not present. We heard submissions from Mr. Crane in which he asked that the Court dismiss the appeal and order the appellant to pay costs of $12,878.22.
[6] While we were in recess to consider those submissions, Mr. Asghar arrived and we resumed at about 10:20 a.m. and heard from Mr. Asghar. He is opposed to this Court dismissing the appeal.
[7] On Friday, November 24, 2017, after being alerted to the issue of jurisdiction, he reviewed s. 19 and s. 110 of the Courts of Justice Act and he now asks on oral motion that this Court transfer the appeal to the Court of Appeal. He concedes that the Divisional Court does not have jurisdiction.
[8] Mr. Crane repeated his submission that the appeal should be dismissed. He referred us to the following decisions of the Divisional Court: Dunnington v. 656956 Ontario Ltd. 1991 7107 (ON SC), [1992] O.J. No. 365 and Schwilgin v. Szivy, 2015 ONSC 4292. He pointed out the three part test that the court must consider on a motion to transfer from the Divisional Court to the Court of Appeal.
[9] On the basis of s. 19(1.2)(c), this Court has no jurisdiction and the appeal should be dismissed. The question is whether we exercise our discretion to transfer the appeal to the Ontario Court of Appeal. As indicated in those two cases, a key factor is whether the appeal has merit. There is no merit to this appeal.
[10] We do not intend to transfer to the Ontario Court of Appeal where more judicial resources will be expended unnecessarily. The appeal is therefore dismissed with costs.
[11] I have endorsed the Appeal Book and Compendium as follows: “This appeal is dismissed. Appellant shall pay costs of $5,000 to the respondent. Oral reasons given today. Copy of transcribed reasons will be forwarded to the appellant and respondent.”
___________________________ KITELEY J.
I agree
SACHS J.
I agree
LeMAY J.
Date of Reasons for Judgment: November 28, 2017
Date of Release: November 30, 2017
CITATION: Asghar v. Ontario Real Estate Association, 2017 ONSC 7133
DIVISIONAL COURT FILE NO.: 217/16 DATE: 2017/11/28
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, SACHS and LeMAY JJ
BETWEEN:
SAJJAD ASGHAR Appellant
– and –
ONTARIO REAL ESTATE ASSOCIATION Respondent
ORAL REASONS FOR JUDGMENT
KITELEY J.
Date of Reasons for Judgment: November 28, 2017
Date of Release: November 30, 2017