Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210127 DOCKET: C68338

Roberts, Zarnett and Sossin JJ.A.

BETWEEN

Andrew Webster Applicant (Respondent)

and

Gary Groszman and 3461505 Canada Inc. c.o.b. as Biltmore Domicile Respondents (Appellant)

Counsel: Gary Groszman, acting in person Nathaniel Read-Ellis, for the respondent

Heard: January 25, 2021 by video conference

On appeal from the order of Justice William S. Chalmers of the Superior Court of Justice, dated April 23, 2020.

Reasons for Decision

[1] The appellant appeals from the order interpreting and enforcing the parties’ settlement agreement pursuant to a motion brought in the respondent’s application under the Partition Act, R.S.O. 1990, c. P.4.

[2] By letter from the office of this court’s Senior Legal Officer, dated September 3, 2020, the parties were asked to address a preliminary issue concerning this court’s jurisdiction to hear this appeal. Under s. 7 of the Partition Act, an appeal from any order made under the Act lies to the Divisional Court.

[3] In oral submissions, the appellant did not advance a position about this court’s jurisdiction. However, he asked that this appeal be transferred to the Divisional Court if this court determined it did not have jurisdiction to hear the appeal.

[4] The respondent submitted that this appeal properly lies to the Court of Appeal because the order under appeal concerns the interpretation and enforcement of a settlement agreement and was not an order made under the Partition Act. Alternatively, the respondent asked that this court seek leave to sit as a panel of the Divisional Court to hear the appeal.

[5] We do not accept the respondent’s submissions.

[6] The order under appeal was clearly an order made under the Partition Act. A brief procedural background of the proceedings suffices to explain why.

[7] The appellant and the respondent were co-owners of commercial properties in Toronto and Montréal. The parties’ relationship broke down and applications were brought for the partition and sale of these properties. The motion judge heard the respondent’s application respecting the Toronto property, ordered and oversaw the sale and the distribution of the proceeds from the sale, including the approval of the agreement of purchase and sale, and ordered an accounting of all the revenue and expenses of the Toronto property. Prior to closing, the parties settled their disputes involving the Toronto and Montréal properties, including settling what would otherwise have been determined on the accounting relating to the Toronto property. However, following the settlement, an issue arose as to who should bear the responsibility for the costs of closing open permits for work to be completed on the Toronto property. The motion judge determined the appellant was responsible for these costs. The appellant appeals from this order.

[8] The motion resulting in the order under appeal was brought in the application commenced under the Partition Act, and not by way of a separate proceeding, before the motion judge who was case-managing the application. However, the procedure followed is only one factor. More importantly, the focus of the motion was on the Toronto property, and the order flowed from the relief sought in the application for the partition and sale of the Toronto property, including the disposition of the net proceeds from that sale and the accounting of the revenue and expenses of that property. That the parties also elected to include the settlement of their Montréal property dispute in the same settlement agreement does not alter the fact that the order made was with respect to matters that fall squarely under the Partition Act.

[9] As a result, this court does not have jurisdiction to hear this appeal. The appeal lies to the Divisional Court pursuant to s. 7 of the Partition Act.

[10] We decline to seek permission from the Chief Justice of the Superior Court of Justice to designate this panel as a panel of the Divisional Court. Such an order is made in exceptional circumstances that are not present in this case: see Punit v. Punit, 2014 ONCA 252, 43 R.F.L. (7th) 84, at para. 18.

Disposition

[11] We therefore transfer this appeal to the Divisional Court pursuant to s. 110 of the Courts of Justice Act. While we cannot order an expedited appeal, we agree that it would be in the parties’ best interests to obtain the earliest appeal date available.

[12] Given the circumstances, we leave the costs of this appeal to be determined by the Divisional Court on the hearing of the appeal.

“L.B. Roberts J.A.”

“B. Zarnett J.A.”

“Sossin J.A.”