Kong v. Au, 2023 ONSC 6160

CITATION: Kong v. Au, 2023 ONSC 6160

DIVISIONAL COURT FILE NO.: 486/22

DATE: 20231101

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SHIU YIU KONG, Appellant

AND:

RAYMOND AU, 1802606 ONTARIO INC. and TAKNOLOGY (CANADA) INC., Respondents

BEFORE: Matheson, O’Brien and Leiper JJ.

COUNSEL: Oscar C. Wong, for the Appellant

Natalie W.Y. Lim, for the Respondents

HEARD at Toronto: October 31, 2023, by Video-conference

ENDORSEMENT

1The appellant has commenced an appeal from the decision of Sugunasiri J. dated August 2, 2022, dismissing an oppression application. The appellant sought relief regarding two closely held companies that are owned in large part by the appellant and the respondent Au. Those companies are the other respondents to this appeal. It also appears that one of the companies has an ownership interest in the other.

2There is a jurisdiction issue regarding this appeal. One of the two companies at issue is an Ontario corporation – 1802606 Ontario Inc – incorporated under the Business Corporations Act, R.S.O. 1990, c. B.16 (“OBCA”). The other company – Taknology (Canada) Inc. – is a Canada Business Corporations Act, R.S.C. 1985, c. C-44 (“CBCA”). The appeal materials seek to pursue an appeal under both statutes and seek interrelated remedies.

3The appeal routes under the above statutes are different. An appeal under the OBCA is to the Divisional Court. However, an appeal under the CBCA is to the Court of Appeal.

4The Court raised this jurisdiction issue with the parties last week. It was not raised by either side of this dispute prior to that time.

5This Court has the discretion to transfer a matter that has been brought in the wrong court to the proper court, under s. 110 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Relevant factors include the merits of the proposed appeal, whether the respondents will suffer undue prejudice as a result of further delay while the appeal is waiting to be heard, and whether the appellant moved expeditiously after becoming aware that jurisdiction was in dispute.

6In this case, we must also consider the issue of divided jurisdiction. The issues on this appeal relate to both companies and are intertwined. The Divisional Court cannot hear or transfer both appeals. However, the Court of Appeal has jurisdiction, under s. 6(2)(3) of the Courts of Justice Act, to transfer a matter already commenced in the Divisional Court if an appeal in the same proceeding lies and is taken to the Court of Appeal. Upon transfer of the CBCA appeal to the Court of Appeal, the appellant could seek an order from the Court of Appeal under s. 6 and potentially have the whole matter considered together. The appellant intends to do so. That relief is not available in the Divisional Court.

7Having considered the submissions and cases put forward by both sides of this dispute, we conclude that the CBCA appeal should be transferred to the Court of Appeal. The relevant statutory provisions regarding appeal rights were expressly stated in the appeal materials but neither counsel identified the issue, accounting for most of the delay. With respect to prejudice, the respondents rely on their legal costs incurred and the costs order below being automatically stayed. The legal costs can still be claimed in the ongoing proceedings. We are not persuaded that there is significant prejudice. As for the merits, they should be heard.

8The CBCA appeal is therefore transferred to the Court of Appeal. The OBCA appeal is adjourned to permit the appellant to seek relief from the Court of Appeal under s. 6 of the Courts of Justice Act.

9Costs thus far shall be reserved to the panel(s) hearing the appeal(s).

ORAL DECISION: The CBCA appeal shall be transferred to the Court of Appeal, with reasons to follow. The OBCA appeal shall be adjourned to give the appellant the opportunity to seek to have it transferred to Court of Appeal under s. 6 of the Courts of Justice Act. The parties shall report to this Court promptly upon receiving the decision of the Court of Appeal under s. 6 to address the scheduling of the OBCA appeal, if necessary.

Matheson J.

O’Brien J.

Leiper J.