COURT OF APPEAL FOR ONTARIO

CITATION: S.B. v. J.M., 2020 ONCA 575

DATE: 2020-09-11

DOCKET: M51692

Brown J.A. (Motion Judge)

BETWEEN

S.B.

Moving Party

and

J.M.

Responding Party

Counsel:

S.B., acting in person

Adam Prewer, for the responding party

Heard: in writing

REASONS FOR DECISION

[1] This motion in writing involves a request by the moving party, S.B., a senior member of the family law bar, for an order extending the time to file a notice of motion for leave to appeal the costs order of Fryer J. dated February 27, 2020.

[2] S.B. brought a motion to remove Epstein Cole LLP (the “Firm”) as solicitors of record for his ex-wife, J.M. By order dated October 22, 2019 Fryer J. dismissed S.B.’s motion. S.B. did not appeal that order.

[3] By costs endorsement dated February 27, 2020 Fryer J. ordered S.B. to pay the Firm its costs of the motion fixed in the amount of $40,000.00 (the “Costs Order”).

[4] On March 4, 2020 S.B. served a Notice of Appeal of the Costs Order, receipt of which was acknowledged the same day by the Firm’s counsel, the Lax O’Sullivan firm. However, the Notice of Appeal served by S.B. was a Form 38 Notice of Appeal under the Family Law Rules, which is used for appeals from the Ontario Court of Justice to the Superior Court of Justice, not for appeals from the Superior Court of Justice to the Court of Appeal.

[5] S.B. had no right of appeal. Section 133 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that no appeal lies without leave of the court where the appeal is only as to costs that are in the discretion of the court that made the order for costs.

[6] Rule 61.03.1(3) of the Rules of Civil Procedure requires that a notice of motion for leave to appeal to the Court of Appeal be served within 15 days after the making of the order from which leave to appeal is sought and filed with the court within five days after service. In accordance with that rule, S.B. was required to serve a notice of motion for leave to appeal by Friday, March 13, 2020.

[7] S.B. did not serve a notice of motion for leave to appeal by March 13, 2020.

[8] On March 19, 2020 the Firm informed S.B. that he had not followed the proper appeal route and that his appeal was out of time.

[9] Effective Monday, March 16, 2020 O. Reg. 73/20 suspended the time periods contained in the Rules of Civil Procedure for any step in a proceeding. For proceedings before the Court of Appeal, the suspension expired effective July 16, 2020.

[10] On July 20, 2020 S.B. served on the Firm a notice of motion for an extension of time to bring a motion for leave to appeal.

[11] The Firm opposes the motion for an extension of time on several grounds, two of which are jurisdictional in nature. The Firm contends that S.B. has gone to the wrong court and should bring his motion for leave to appeal before the Divisional Court for two reasons.

[12] First, the Firm submits that S.B.’s motion properly belongs before the Divisional Court because, where only costs are under appeal, appellate jurisdiction depends upon the nature of the predicate order. Accordingly, the appeal of a costs order flowing from an interlocutory order of a Superior Court judge lies to the Divisional Court: Godard v. Godard, 2015 ONSC 3114, [2015] O.J. No. 2484, at para. 7. The Firm contends that an order dismissing a motion to remove a solicitor of record is interlocutory in nature.

[13] Second, if the order is a final one, then the Firm argues the Costs Order constitutes a “single payment” order for less than $50,000, within the meaning of CJA ss. 19(1)(a) and 19(1.2)(a). Since the Costs Order was for $40,000, an appeal (or request for leave to appeal) lies to the Divisional Court.

[14] If the Firm is correct on either ground, then I lack the jurisdiction to make any order. In this court, decisions on jurisdictional questions are generally made by a panel of three judges, not by a single judge sitting in Chambers.

[15] Consequently, I direct that this motion in writing be placed before a panel of three judges for consideration.

“David Brown J.A.”