Court of Appeal for Ontario

Date: 2017-10-25

Docket: M48418 & M48440 (C64169)

Nordheimer J.A. (In Chambers)

Between

Randi Joy Cogan Shinder Applicant (Respondent) (Responding Party/Moving Party in M48440)

and

Neil Allen Shinder Respondent (Appellant) (Responding Party/Moving Party in M48418)

and

Solomon Shinder Respondent (Responding Party)

Counsel

Harold Niman & Venessa Amyot, for the appellant/moving party in M48440

Jaret N. Moldaver, for the respondent/moving party in M48418

Erin Crawford, for the responding party Solomon Shinder

Heard: October 24, 2017

Endorsement

[1] Neil Shinder appeals from the order of J. Wilson J. dated July 13, 2017 that granted what I would characterize as partial summary judgment in favour of Randi Shinder. Because of uncertainty over whether the order in question is a final or interlocutory order, Neil Shinder filed a Notice of Appeal in this court and a motion for leave to appeal in the Divisional Court. The appeal in this court has been perfected and is scheduled to be heard on January 25, 2018. The motion for leave to appeal is scheduled to be heard in writing on October 27, 2017.

[2] Neil Shinder now brings a motion for directions in which he seeks an order "that the motions for leave to appeal to the Divisional Court brought by the Respondent/Appellant and the Respondent, Sol Shinder, be heard by the Court of Appeal". Randi Shinder opposes that relief and brings a cross-motion to adjourn the hearing of the appeal and for an extension of time to file her responding materials.

[3] There are two problems with the relief that the appellant seeks. First, this court does not have jurisdiction to determine a motion for leave to appeal that is brought before the Divisional Court. Section 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 permits this court to hear an appeal that lies to the Divisional Court, but only where there is an appeal in the same proceeding in this court. However, an appeal does not lie to the Divisional Court unless and until leave to appeal has been granted: Waldman v. Thomson Reuters Canada Ltd., 2015 ONCA 53.

[4] Second, even if I had jurisdiction to transfer the matter from the Divisional Court to this court, in order to make that order, I would have to decide that the order in question is a final order and properly appealed to this court. In my view, it is not appropriate for a motions judge to make that determination. That issue, which is squarely raised by this motion, is a question of jurisdiction and that question is properly determined by the panel hearing the appeal or, alternatively, by a panel on a motion to quash, if such a motion is brought by the respondent.

[5] I have been referred to the endorsement of Epstein J.A. in Klasios v. Klasios, (May 1, 2015), Toronto, M44974 (Ont. C.A.). It is argued that that decision concluded that a motions judge could determine a jurisdiction issue. I do not agree, at least in respect of the issue that is presented here. Justice Epstein was addressing whether an extension of time to file a Notice of Appeal should be granted. Because of certain concessions that appear to have been made by counsel in that case, Epstein J.A. concluded that the order in question was clearly interlocutory and thus an extension of time to appeal ought not to be granted since the matter was not properly before this court. I note that Epstein J.A. said, at the outset of her endorsement at para. 2: "I do not have jurisdiction to decide the jurisdiction question".

[6] In reaching the conclusion that I have, I am mindful of the costs that parties can incur when confusion arises over the proper appeal route. This is not the first time that parties have had to launch proceedings both in this court and in the Divisional Court because of the uncertainty over whether an order is final or interlocutory. This problem is inherent when the appeal route depends on a distinction between final and interlocutory orders. It is a problem that has plagued both judges and lawyers for a long time and which was aptly captured by Laskin J.A. in Capital Gains Income Streams Corp. v. Merrill Lynch Canada Inc., 2007 ONCA 497, 87 O.R. (3d) 443, where he said, at para. 36:

The distinction between final and interlocutory orders bedevils this court. Far too much ink has been spilled over the pages of the Ontario Reports, grappling with this distinction. Even when the parties themselves do not raise the issue, the court itself often feels compelled to do so — as it did in this case — because the court's jurisdiction to hear an appeal turns on the distinction: final orders are appealable as of right to this court; interlocutory orders are not.

[7] The problem also drew the attention of the Honourable Colter Osborne in his Civil Justice Reform Project. He recommended that the Civil Rules Committee consider the issue and, "hopefully", make recommendations to the Attorney General for a legislative amendment to the Courts of Justice Act "that would jettison the final/interlocutory distinction" (Honourable Coulter A. Osborne, Civil Justice Reform Project: Summary of Findings & Recommendations (November 2007), at p. 105). That has not happened.

[8] Unless the problem is addressed in some such fashion, this situation will continue to occur and parties will be put to avoidable expense. None of that changes the fact, however, that it is a panel of this court that must determine the jurisdiction issue, not a motions judge. The decision of a motions judge is not binding on a panel: Courts of Justice Act, s. 7(5).

[9] The motion by the appellant for directions is dismissed.

[10] In terms of the cross-motion, the appellant does not object to an extension of time for the respondent to file her responding materials. The respondent's request for a two-week extension is granted.

[11] The respondent also asked for the hearing of the appeal to be adjourned because her counsel may be called to trial in Brampton during that time. The appellant objected to that request. I will not adjourn the appeal for that reason. If counsel is called to trial, I fully expect that the presiding judge will grant him a one-day absence in order for him to attend in this court to argue the appeal.

[12] The parties are agreed that the costs of these motions should be fixed at $5,000. They do not agree, however, on their disposition. The main issue raised by this motion turns on whether the appellant is properly before this court for his appeal. Consequently, I would fix the costs of these motions at $5,000, inclusive of disbursements and HST, but leave the disposition of those costs to the panel hearing the appeal.

I.V.B. Nordheimer J.A.