2503257 Ontario Ltd. v. 2505304 Ontario Inc. (Good Guys Gas Bar), 2020 ONCA 149

Case Summary

The Court of Appeal for Ontario addressed its jurisdiction to hear an appeal from an order granting vacant possession. Despite arguments from the parties, the court determined that the order fell under s. 78(1) of the Commercial Tenancies Act, which directs such appeals to the Divisional Court. Consequently, the Court of Appeal transferred the appeal to the Divisional Court pursuant to s. 110(1) of the Courts of Justice Act, declining to hear the merits. No costs were ordered.

Court of Appeal for Ontario

Date: 20200224 Docket: C66514

Before: Roberts, Zarnett and Jamal JJ.A.

Between:

2503257 Ontario Ltd. and Faith of Life Network Applicants (Respondent in Appeal)

And

2505304 Ontario Inc., carrying on business as Good Guys Gas Bar Respondent (Appellant)

Counsel:

Bryan Fromstein and A. Fabio Longo, for the respondent (appellant) Bernie Romano and Jordan Nussbaum, for the applicants (respondent in appeal)

Heard and released orally: December 18, 2019

On appeal from the order of Justice Ivan S. Bloom of the Superior Court of Justice, dated January 23, 2019.

Reasons for Decision

[1] As a courtesy by letter dated June 17, 2019, this court’s Senior Legal Officer alerted the parties to a potential problem regarding this court’s jurisdiction to hear an appeal from an order granting vacant possession. She suggested that they could bring a motion before a single judge of this court or file a consent order transferring the appeal to the Divisional Court without the necessity of today’s attendance.

[2] The parties did not do so but argued that this court has jurisdiction to hear this appeal.

[3] We disagree. The application judge granted vacant possession to the respondent which, in our view, is caught under s. 78(1) of the Commercial Tenancies Act, R.S.O. 1990. C. L.7, when read in light of the statutory scheme set out in s. 74 to 78, which deal with who is entitled to possession after a notice under the Commercial Tenancies Act is served. The February 13, 2019 order of Hourigan J.A., refusing a stay of the order under appeal and consequentially granting a writ of possession, was ancillary to the order granting vacant possession. It is therefore not an impediment to the Divisional Court’s jurisdiction to hear this appeal.

[4] As a result, the appeal from the January 23, 2019 order granting vacant possession must be made to the Divisional Court.

[5] Accordingly, the appeal in this court is transferred to the Divisional Court pursuant to s. 110(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[6] There shall be no order as to costs.

“L.B. Roberts J.A.”

“B. Zarnett J.A.”

“M. Jamal J.A.”