Court of Appeal for Ontario

Citation: Dal Bianco v. Deem Management Services Limited, 2020 ONCA 488

Date: 2020-07-28

Docket: M51655 (C68214)

Before: Jamal J.A. (Motions Judge)

Between:

Donald Dal Bianco Applicant (Appellant/Responding Parties)

and

Deem Management Services Limited and The Uptown Inc. Respondents (Respondents/Responding Parties)

Counsel:

R. Brendan Bissell and Joël Turgeon, for the moving party, the Receiver, Crowe Soberman Inc.

David T. Ullmann, for the responding party, Donald Dal Bianco

Harold Rosenberger, for Deep Foundations Contractors Inc.

Edward L. D’Agostino, for Kieswetter Excavating Inc.

Jeffrey A. Armel, for the responding party, EXP Services Inc.

Eric Gionet, for the responding party, Maxion Management Services Inc.

Heard: July 28, 2020 by videoconference

REASONS FOR DECISION

[1] This motion seeks directions on whether this court or the Divisional Court has jurisdiction over this appeal and, if the Divisional Court has jurisdiction, whether the appeal should be transferred to the Divisional Court.

[2] The order under appeal was made under s. 78 of the Construction Act, R.S.O. 1990, c. C.30, in the context of a receivership, to determine competing priorities between registered lien claimants and a registered mortgage. This priority dispute was separated from other contested issues in the receivership and adjudicated on an agreed statement of facts.

[3] The jurisdictional issue arises because s. 71(1) of the Construction Act, if applicable, provides that an appeal lies to the Divisional Court, while s. 193 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B.3, if applicable, provides that an appeal lies to the Court of Appeal, in some instances with leave of a judge of this court.

[4] A single judge of this court lacks jurisdiction to decide this jurisdictional issue. It is settled that "[q]uestions of whether an appeal lies within the jurisdiction of this court must be decided by a three-judge panel of this court" and thus "a single judge has no power to decide whether an appeal is within the jurisdiction of this court": Ontario (Provincial Police) v. Assessment Direct Inc., 2017 ONCA 986, at para. 4; see also Shinder v. Shinder, 2017 ONCA 822, at para. 4. Although this motion is framed as a motion for directions, if I were to find that this court lacks jurisdiction I would in effect be quashing the appeal, which only a panel of this court has jurisdiction to order: see Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(3); RREF II BHB IV Portofino, LLC v. Portofino Corporation, 2015 ONCA 906, at para. 6.

[5] Accordingly, because I lack jurisdiction to decide the motion, the motion is adjourned to be heard by a panel of the court on September 3, 2020.

[6] No order as to costs for today’s attendance.

"M. Jamal J.A."