Court of Appeal for Ontario

Date: 20210511 Docket: M52440 (C68133)

Before: Nordheimer J.A. (Motions Judge)

Between:

Janet Louise Hilson Moving Party (Appellant)

and

Carole Evans Responding Party (Respondent)

Counsel: Howard W. Reininger, for the moving party Orie H. Niedzviecki, for the responding party

Heard: May 11, 2021 by video conference

Endorsement

[1] The appellant brings this motion for an order transferring this appeal to the Divisional Court in Hamilton. The appeal was quashed by this court on April 19, 2021 – see Hilson v. Evans, 2021 ONCA 262.

[2] I raised the issue whether I have jurisdiction to make such an order after the appeal has been quashed. In response, counsel for the appellant referred me to the decision in Sprenger v. Paul Sadlon Motors Inc., 2006 CarswellOnt 6004, in which this court quashed an appeal on the basis that the order in question was interlocutory but also granted an order “transferring the motion for leave to appeal to the Superior Court”. The appellant submits that this decision shows that there remains a basis to transfer a quashed appeal under s. 110(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[3] It seems to me that there is a significant difference between seeking the transfer of an appeal at the time that it is quashed and doing so some weeks after it has been quashed. I am not convinced that there is currently an appeal left to transfer.

[4] However, I do not have to decide that issue in this case because there is another problem with the appellant’s request. The respondent says that counsel asked the panel to transfer the appeal to the Divisional court at the time, but they declined. The appellant says that there is no evidence on that point and also notes that there is no reference to that fact in the oral reasons given by the court.

[5] I have reviewed the recording of the hearing. It is clear that counsel for the appellant did ask for the appeal to be transferred to the Divisional Court and that the panel declined to do so. A single judge cannot reverse that decision. However, even if that request had not been made, I do not believe that a single judge has jurisdiction to grant relief that could have been, but was not, sought from the panel hearing the appeal.

[6] Consequently, the appellant’s only remedy is to start the appeal anew in the Divisional Court. If an extension of time is necessary, then it will have to be sought from the Divisional Court.

[7] The motion is dismissed. The respondent is entitled to her costs of the motion which I fix in the amount of $2,500, inclusive of disbursements and HST.

“I.V.B. Nordheimer J.A.”