COURT OF APPEAL FOR ONTARIO

CITATION: Rosso v. Rosso, 2025 ONCA 822

DATE: 20251127

DOCKET: M56392 (COA-25-CV-1044)

Paciocco J.A. (Motion Judge)

BETWEEN

Bruno Rosso

Applicant (Respondent/Responding Party)

and

Domenic Rosso also known as Tony Rosso*, Carmelina Rosso also known as Carmela Rosso*, Salvatore Rosso** and Computershare Trust Company of Canada Societe de Fiducie Computershare du Canada

Respondents (Appellant*/Moving Parties*/Respondent**/Responding Party**)

AND BETWEEN

Domenic A. Rosso

Applicant (Appellant/Moving Party)

and

Bruno Rosso, Nancy Rosso also known as Ignazia Rosso, and Salvatore Rosso

Respondents (Respondents/Responding Parties)

Counsel:

Gregory W. Bowden, for the moving parties

Jeffrey Radnoff and Asad Khan, for the responding parties Bruno Rosso and Nancy Rosso

Olivia Eng, for the responding party, Salvatore Rosso

No one appearing for Computershare Trust Company of Canada Societe de Fiducie Computershare du Canada

Heard: November 25, 2025

REASONS FOR DECISION

[1] The underlying appeal in this matter relates to a dispute between three brothers – Domenic, Bruno, and Salvatore Rosso – concerning a residential investment property in Toronto, Ontario which they have owned jointly since 1988.[^1] The parties agree that there was some form of an oral agreement in February 2019 to facilitate the sale of Bruno’s one-third interest in the property to his brothers. They disagree about details within that agreement and whether it is enforceable. The dispute has led to protracted litigation and animosity among the brothers for several years.

[2] Domenic and Bruno brought competing applications in the Superior Court of Justice concerning the property, which were ultimately consolidated and heard together by Parghi J.: Rosso v. Rosso, 2025 ONSC 4177. The two applications are summarized as follows:

(a) “Breach of Contract Application” (CV-20-00645977) – brought by Domenic seeking a declaration that the oral agreement is a valid contract and seeking an order of specific performance to enforce the sale of Bruno’s interest to Domenic and Salvatore.

(b) “Partition and Sale Application” (CV-20-00651475) – brought by Bruno seeking an order of partition and sale, with the net proceeds divided equally among the brothers. This application also sought an order for an accounting of rent and insurance funds received by Domenic in relation to the property since 1992, and a corresponding order granting Bruno one-third of those proceeds.

[3] The trial judge dismissed the Breach of Contract Application and granted the Partition and Sale Application in part. She made the following orders: (1) the property be listed for sale pursuant to the Partition Act, R.S.O. 1990, c. P.4; (2) the parties follow specific directions for the sale of the property; (3) the net proceeds of the sale be paid into court subject to further order; (4) an associate judge provide ongoing supervision to effect the sale; (5) Domenic account for rents and insurance funds received from 1992 to present; and (6) costs in favour of Bruno and Salvatore. The trial judge’s reasons were released on July 17, 2025. The formal judgement was issued on August 15, 2025.[^2]

[4] Domenic served his notice of appeal on August 18, 2025, challenging the trial judge’s dismissal of the Breach of Contract Application and the orders made pursuant to the Partition and Sale Application. He filed his notice of appeal at this court on August 22, 2025. That started the 30-day clock for Domenic to perfect his appeal pursuant to r. 61.09(1)(a) of the Rules of Civil Procedure, R.R.O. 190, Reg. 194. On September 23, 2025, the Office of the Registrar informed Domenic that his appeal would be dismissed pursuant to r. 61.13(2.1) if it was not perfected on or before October 16, 2025. Domenic delivered notice of this motion on October 15, 2025. He functionally brings three motions: (1) to transfer the appeal to the Divisional Court; (2) to extend the time to perfect the appeal, and (3) to stay the judgement of Parghi J. pending appeal. I am dismissing the first motion, granting the second motion, and granting the third motion for the reasons that follow.

Motion to transfer the appeal to the Divisional Court

[5] Domenic’s first motion is to transfer the appeal to the Divisional Court, or for a declaration that the matter is properly before the Court of Appeal. Salvatore argues that the appeals of both applications can be heard by this court. Bruno took no position in his written materials but appeared to mirror the position of Salvatore in his oral submissions.

[6] Domenic’s appeal concerning the Breach of Contract Application is properly before this court. The original application sought a declaration and specific performance. Its dismissal was a final decision on the merits.

[7] Domenic’s appeal concerning the Partition and Sale Application, on the other hand, would ordinarily lie to the Divisional Court. The order for partition and sale was made pursuant to the Partition Act. It was a final order. Pursuant to s. 7 of the Partition Act, appeal of any order made under that Act lies to the Divisional Court. The order to account for rents and insurance funds received is an interlocutory order; subsequent adjudication will be required to resolve Bruno’s claim. Appeals of interlocutory orders are within the jurisdiction of the Divisional Court and require leave, even if they are made in cases where the Partition Act applies: Nifco v. Nifco, 2017 ONSC 7475, 6 R.F.L. (8th) 212, at paras. 7-11; Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b).

[8] Therefore, we are left in a situation where part of the appeal lies to this court and part lies to the Divisional Court. Subsection 6(2) of the Courts of Justice Act gives this court the jurisdiction to hear and determine an appeal that would otherwise lie to the Divisional Court if an appeal in the same proceeding lies and is taken to the Court of Appeal. The test for combining appeals is twofold. First, there is a threshold question of whether the appeals are “in the same proceeding”, per the language of s. 6(2): Binance Holdings Ltd. v. Ontario Securities Commission, 2024 ONCA 805, at paras. 17, 19. Then, I must consider whether combining the appeals better comports with the administration of justice: Cavanaugh v. Grenville Christian College, 2013 ONCA 139, 360 D.L.R. (4th) 670, at paras. 85-87; Davis v. Amazon Canada Fulfillment Services, ULC, 2023 ONCA 634, at paras. 8-9. Several factors may be considered, such as the risk of inconsistent results; the extent of overlap; whether different issues contraindicate joinder; any prejudice from combining; and whether combination secures the must just, most expeditious, and least expensive determination of the issues on their merits. See Binance, at paras. 17-18.

[9] I find that the “in the same proceeding” requirement is satisfied in this case. The two applications were consolidated below, heard together, and resulted in a single judgement. See Binance, at paras. 25-26.

[10] Combining the appeals also better comports with the administration of justice. There is overlap between the issues and it would be expeditious and likely less expensive for the parties if this is done. Combining the appeals will not prejudice the parties. Indeed, the parties now agree that the appeals should be combined and heard in this court. If the appeals are not combined and should Domenic prevail in his appeal concerning the Breach of Contract Application, the relief granted in the Partition and Sale Application would be called into question. Sending each appeal on its usual jurisdictional path would create a risk of inconsistent results and there are no factors contraindicating joinder.

[11] I recognize that to combine the appeals entirely in the Court of Appeal, the interlocutory aspects of the Partition and Sale Application orders would ordinarily require leave from the Divisional Court. In this case, I find that the final and interlocutory aspects are so interrelated that leave would inevitably have been granted: Lax v. Lax, 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520 (C.A.), at para. 9. This determination allows the appeals of both applications to be fully heard in the Court of Appeal.

[12] Therefore, I dismiss the motion to transfer the appeal to the Divisional Court, and instead order that the appeal of both applications be combined and heard together at the Court of Appeal.

Motion to extend the time to perfect the appeal

[13] Domenic’s motion to extend the time to perfect his appeal is being brought because he missed the September 22, 2025 deadline to do so. Bruno opposes an extension, while Salvatore takes no position.

[14] Pursuant to r. 3.02(1) of the Rules, I have jurisdiction to order an extension or abridgement of time on such terms as are just. The overarching principle is whether the “justice of the case” requires that an extension be granted: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15; Dale v. Toronto Real Estate Board, 2025 ONCA 476, at para. 16. The following four factors are relevant:

(a) Whether the moving party formed a bona fide intention to appeal within the relevant time period;

(b) The length of, and explanation for, the delay in filing;

(c) Any prejudice to the responding parties caused, perpetuated, or exacerbated by the delay; and

(d) The merits of the proposed appeal.

[15] In the case of a motion for an extension of time to perfect an appeal, as is this case, the relevant consideration for the first factor is whether the moving party maintained their intention to appeal within the relevant time period: Issai v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 5.

[16] I am persuaded that Domenic maintained an intention to appeal within the relevant time period but failed to do so because of the need to retain new counsel and because of uncertainty about the proper forum. He has continued to prepare for the appeal and has produced draft documents, which were served on the respondents on November 17, 2025. The delay in perfecting has not been overlong or prejudicial, and the appeal is not without merit, as I explain below.

[17] Therefore, I grant the motion to extend the time to perfect the appeal. It is to be perfected by the end of business on Friday, December 5, 2025.

Motion to stay pending appeal

[18] Domenic’s third motion is to stay the judgement of Parghi J. pending appeal. Bruno opposes the stay, while Salvatore takes no position.

[19] In this case, there were no orders for the payment of money, so there was no automatic stay pursuant to r. 63.01(1). The test for a discretionary stay under r. 63.02(1)(b) is well-established and mirrors the test for an interlocutory injunction in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at pp. 676-77. The factors to determine whether a stay is in the interests of justice include:

(a) Whether there is a serious issue to be tried;

(b) Whether the moving party would suffer irreparable harm if the stay were refused; and

(c) The balance of convenience, namely which of the parties would suffer greater harm from the granting or refusing of the stay.

[20] I am satisfied that there are serious issues to be tried in the combined appeals relating to the trial judge’s possible use of credibility findings made against Domenic by another judge in an earlier proceeding; findings she made on the record before her relating to a $300,000 payment made by Domenic and a $50,000 loan allegedly made by Dominic to Bruno; and her failure to consider the application of the limitation period in requiring Domenic to account for rents and insurance funds from 1992 to the date of closing of the sale of the property.

[21] I accept Domenic’s claim that the sale of the property pending appeal could result in irreparable harm given his family’s emotional attachment to the property as their long-time home. Moreover, it would be wasteful to proceed with the costs and labour involved in the settlement of setoffs against sale proceeds if the order for partition and sale is set aside. I am also persuaded that although the claim for an accounting for rents and insurance funds received is functionally a separate cause of action in Bruno’s application, an accounting relating to all such rents and insurance funds received since 1992 could prove wasteful if the appeal relating to the limitation defence were to succeed. That cost and inconvenience could be spared by staying the balance of the order.

[22] There is no suggestion that granting the stay will inconvenience the responding parties. The interests of justice support the stay that is requested.

[23] Therefore, I grant the motion to stay the judgment of Parghi J.

Costs in this motion

[24] Bruno and Salvatore argue that they are entitled to costs relating to the motion to transfer the appeal to the Divisional Court (and for directions) since they took no issue with this court assuming jurisdiction over any of the issues on appeal. I accept that there was uncertainty relating to the jurisdictional issues which could have been raised by the court, but I agree with the responding parties that they should not incur costs caused by Domenic in settling the forum for the appeals and I would add that their contributions on this issue were helpful to the court. Salvatore did not oppose the request for an extension or a stay pending appeal. Bruno opposed both unsuccessfully. Costs are payable by Domenic and Carmelina to Salvatore in the amount of $5,000 inclusive of applicable taxes and disbursements. Costs are payable by Bruno and Nancy to Domenic and Carmelina in the amount of $3,500 inclusive of applicable taxes and disbursements.

“David M. Paciocco J.A.”

[^1]: While Carmelina Rosso (wife of Domenic) and Nancy Rosso (wife of Bruno) are also parties to this motion, I only refer to the three brothers by name throughout these reasons for expediency.

[^2]: One paragraph of the reasons was amended on August 15, 2025, to add a description of the order for accounting.