Court of Appeal for Ontario

Date: 2022-01-24 Docket: C69565

Judges: Pardu, Roberts and Miller JJ.A.

Between:

2650971 Ontario Inc. and Kouraj Rahimi-Aloughareh a.k.a. Cyrus Rahimi Applicants (Respondents)

And:

Durim Shameti and Anila Shameti Respondents (Appellants)

Counsel:

Harneet Singh and Obaidul Hoque, for the appellants Michael A. Katzman, for the respondents

Heard: January 20, 2022 by video conference

On appeal from the judgment of Justice Jana Steele of the Superior Court of Justice dated June 1, 2021.

Reasons for Decision

[1] This is an appeal from a judgment ordering the sale of a property that the parties had purchased for renovation and resale (“the investment property”) in furtherance of the parties’ joint venture.

[2] There was no dispute that both sides made financial contributions to the down payment on the investment property. The investment property was purchased, and title was taken in the names of the appellants, who are spouses. The application judge found that the investment property was held by the appellants as bare trustees for the benefit of the corporate respondent, 2650971 Ontario Inc., or for the three parties to the joint venture, the respondent, Mr. Rahimi, and the appellants.

[3] The parties’ joint venture foundered. The respondents brought an application for declaratory relief respecting the title to and ownership of the investment property, and an order for partition and sale. The application judge made an order for the sale of the investment property and a reference to a Master (now Associate Justice) of the Superior Court to determine the apportionment of the sales proceeds and the disposition of costs as between the parties.

[4] The disposition of this appeal turns on a preliminary jurisdictional issue. Section 7 of the Partition Act, R.S.O. 1990, c. P.4, provides that “[a]n appeal lies to the Divisional Court from any order made under this Act.” On August 3, 2021, the Executive Legal Officer of this court alerted the parties to the possible jurisdictional issue that s. 7 of the Partition Act may apply to this appeal such that the appeal lies to the Divisional Court, and asked them to be prepared to address the preliminary issue concerning this court’s jurisdiction to hear the appeal.

[5] The appellants maintain that this court has jurisdiction to hear this appeal because the application judge’s judgment finally disposed of the application. The order for sale of the investment property was only part of the relief sought by the respondents. As the issue of partition and sale was intertwined with other issues that were finally disposed of, this court has jurisdiction to hear the appeal.

[6] The respondents acknowledge that this appeal lies within the jurisdiction of the Divisional Court; however, they have no objection if this court agrees to hear the appeal.

[7] We do not agree that this court has jurisdiction to hear this appeal. The parties cannot confer jurisdiction on this court by agreement.

[8] Section 7 of the Partition Act plainly stipulates that an appeal from an order made under the Act lies to the Divisional Court. The judgment under appeal clearly ordered the sale of the parties’ investment property pursuant to the Partition Act. This remedy was expressly sought in the respondents’ application. That the respondents also included other issues and heads of relief in their application does not alter the fact that the judgment made was with respect to matters that fall squarely under the Partition Act: Webster v. Groszman, 2021 ONCA 55, at para. 8.

[9] As a result, in accordance with s. 7 of the Partition Act, an appeal from the judgment lies to the Divisional Court. This court has no jurisdiction to hear the appeal.

Disposition

[10] The appeal is therefore quashed.

[11] The appellants shall pay the respondents their appeal costs in the amount of $12,000.00, inclusive of disbursements and applicable taxes.

“G. Pardu J.A.”

“L.B. Roberts J.A.”

“B.W. Miller J.A.”