Court File and Parties

CITATION: The Bank of Nova Scotia v. Compas Inc., 2018 ONSC 6522

DIVISIONAL COURT FILE NO.: 399/18 DATE: 20181030

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

THE BANK OF NOVA SCOTIA

Sean Zeitz, for the Plaintiff (Respondent in Appeal)

Plaintiff (Respondent in Appeal)

– and –

COMPAS INC. and CONRAD WINN also known as CONRAD L. WINN also known as CONRAD L.J. WINN

Peter M. Callahan, for the Defendant (Appellant), Conrad Winn

Defendants (Appellants)

HEARD at Toronto: October 30, 2018

Oral Reasons for Judgment

C. HORKINS J. (Orally)

[1] The Defendant/Appellant Conrad Winn brings a motion to transfer his appeal to the Ontario Court of Appeal.

[2] He appeals the order of Nakatsuru J. dated May 28, 2018 made on a summary judgment motion brought by the Plaintiff/Respondent, The Bank of Nova Scotia. The motion judge allowed summary judgment and ordered the plaintiffs to pay the Bank $269,445.25.

[3] There is no debate that the appeal of this final order should have been brought in Ontario Court of Appeal and not the Divisional Court.

[4] Unfortunately, a process server for the Appellant’s counsel filed the Notice of Appeal in the Divisional Court even though he was requested to file the Notice of Appeal in the Court of Appeal.

[5] The Notice of Appeal was accepted by the Divisional Court office and the appeal was then perfected.

[6] When counsel for the Appellant became aware that the Notice of Appeal was filed in the wrong court, he brought the motion before me today to transfer the appeal to Ontario Court of Appeal.

[7] Under s. 110 of the Courts of Justice Act, this court has the jurisdiction to exercise its discretion and transfer this appeal to the Ontario Court of Appeal.

[8] In deciding whether to exercise my discretion, the test in Dunnington v. 656956 Ontario Ltd. (1991), 9 O.R. (3d) 124 (Ont. Div. Ct.) applies. I rely on this test that has since been applied in numerous decisions. In particular, the following passage from Hammond v. State Farm Mutual Automobile Insurance Co., 2011 ONSC 3192 is helpful. At paras. 8 and 9, the court stated:

[8] Counsel agreed that I should direct myself to the criteria set out by Rosenberg J. (as he then was) in Dunnington v. 656956 Ontario Ltd. (1992) 90 O.R. (3d) 124. That decision, which has been followed by subsequent Divisional Court panels, states that in exercising discretion under section 110 of the Courts of Justice Act to transfer a file to the Court of Appeal in a case where the Divisional Court does not have jurisdiction to hear the matter, there are three criteria to be considered, namely:

(a) Does the Appellant have a meritorious appeal?

(b) Will the respondent suffer undue prejudice as a result of further delay while the appeal is waiting to be heard by the Court of Appeal?

(c) Has the Appellant moved expeditiously once it was known that the jurisdiction was being disputed.

[9] The first criterion of the three presumably is designed to avoid wasting judicial resources at the Court of Appeal on cases that have little chance of success even though, but for the filing error, that “gatekeeper” function would not otherwise exist. The second criterion deals with fairness to the Respondent, and the third relates to the court’s responsibility to manage its process.

[9] I start by observing that in this case the Appellant did move expeditiously once it was known that there was a problem.

[10] I appreciate that through no fault of the Appellant or his counsel, this appeal was filed in the wrong court. A similar problem arose in National Telecommunication Inc. v. Stalt Telcom Consulting Inc., 2018 CarswellOnt 16593 when Simmons J.A. stated at paras. 18 – 19 as follows:

[18] In this case, I agree that the fact of solicitor’s inadvertence and the potential for confusion between differing appeal periods militate in favour of an extension. That said, I cannot agree that the merits of the appeal should be ignored. If an appellant is unable to identify and even tenuously arguable ground of appeal, such that the proposed grounds of appeal do not surpass the “not frivolous” standard, it would be contrary to the interests of justice and a waste of time, money and resources to permit the appeal to proceed.

[19] In my view, that is the situation here. The appellants’ attacks on the motion judge’s decision consist exclusively of attacks on findings of mixed fact and law. The appellants do not assert that the motion judge misstated any specific legal test or legal principle.

[11] As in National Telecommunication Inc., I cannot ignore the issue of whether the appeal has merit. There is no point in transferring what I find to be a frivolous appeal.

[12] The following supports my decision to deny the motion.

[13] I start with the standard of review that would apply to this appeal, as recently articulated in Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 9822, where the court stated at paras. 44-45 as follows:

[44] The appellant is inviting this court to reweigh the evidence that was considered by the motion judge to arrive at a different factual conclusion. That is not our function. Where the evidentiary record on a Rule 20 motion permits the motion judge to resolve the issues justly and fairly, his exercise of discretion in making factual determinations is entitled to considerable deference.

[45] In Hryniak, Karakatsanis J. for the Supreme Court stated that the exercise of a power under the summary judgment rule attracts deference and that when the motion judge exercises the “fact-finding powers under Rule 20.04(2.1) and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law” (at para. 81). Where there is no extricable error in principle, findings of mixed fact and law should not be overturned, absent palpable and overriding error (at para. 81).

[14] I have reviewed the reasons of the motion judge, the notice of appeal and the factum filed on the appeal. There are no alleged errors of law. When the reasons of the motion judge are read in conjunction with the notice of appeal and factum, it is apparent that the Appellant is simply asking an appeal court to reweigh the evidence and arrive at a different conclusion. This is not the function of an appeal court.

[15] On the record, there is no prospect of the Appellant being able to establish a palpable and overriding error of fact or mixed fact and law. There is simply no basis on the record to conclude that such errors are plain and obvious, as the test requires. It would be contrary to the interest of justice to transfer the appeal. It would be a waste of time, money and resources of the parties and the court.

[16] For these reasons, I decline to do so. The motion is dismissed.

[17] I have endorsed the Motion Record as follows: “The Plaintiff’s motion is dismissed. Oral reasons provided today. The Respondent is entitled to costs of this motion that I fix at $5,000 all inclusive. This amount is fair and reasonable when compared to the Plaintiff’s cost outline.”

___________________________ c. horkins J.

Date of Reasons for Judgment: October 30, 2018

Date of Release: October 31, 2018

CITATION: The Bank of Nova Scotia v. Compas Inc., 2018 ONSC 6522

DIVISIONAL COURT FILE NO.: 399/18 DATE: 20181030

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

THE BANK OF NOVA SCOTIA

Plaintiff (Respondent in Appeal)

– and –

COMPAS INC. and CONRAD WINN also known as CONRAD L. WINN also known as CONRAD L.J. WINN

Defendants (Appellants)

ORAL REASONS FOR JUDGMENT

C. HORKINS J.

Date of Reasons for Judgment: October 30, 2018

Date of Release: October 31, 2018