Court File and Parties

Citation: McCoy v. Choi, 2021 ONSC 4184 Divisional Court File No.: 090/21 Date: 2021-07-09 Superior Court of Justice – Ontario Divisional Court

Re: Chris McCoy, Levonia Miller, Joseph McCoy and Avianna McCoy (a minor by her Litigation Guardian, Chris McCoy), Plaintiffs/Responding Parties And: Dr. Abram Choi and Merivale Medical Imaging Inc., Defendants/Moving Party

Before: Lederer, Kristjanson and Favreau JJ.

Counsel: Pat C. Peloso and Brieanne Brannagan, for the Moving Party, Dr. Abram Choi Davies Bagambiire and Robert Perron, counsel for the Responding Parties, Chris McCoy, Levonia Miller, Joseph McCoy and Avianna McCoy (a Minor by her Litigation Guardian, Chris McCoy)

Heard: in writing at Toronto

Decision on Motion for Leave to Appeal

[1] The moving party, Dr. Abram Choi, brought a motion for leave to appeal to the Divisional Court from an order dated January 8, 2021 made by Arrell J. In his decision, the motion judge dismissed Dr. Choi’s motion to dismiss the claim on the basis that the Superior Court does not have jurisdiction over the action against him because of an arbitration clause in a collective agreement.

[2] After reviewing the materials, the panel directed counsel for the parties to consider whether the order at issue is final or interlocutory in light of the decisions in Hopkins v. Kay, 2014 ONCA 514 at para. 9 and Abbott et al. v. Collins et al. (2002), 62 O.R. (3d) 99 (C.A.) at para. 5. The panel also requested the parties’ positions on whether, if the order is final, the matter should be transferred to the Court of Appeal.

[3] In response, counsel for both sides advised the Court that they agree that the order is final and they both agree that the matter should be transferred to the Court of Appeal.

[4] Accordingly, we find that the Divisional Court does not have jurisdiction over the proposed appeal because Arrell J.’s order is final. As held in Abbott, the order finally determines that the dispute between the parties is not subject to arbitration under the collective agreement. We are also satisfied, based on the agreement of the parties and the nature of the issues raised, that the matter should be transferred to the Court of Appeal pursuant to section 110(1) of the Court of Justice Act, R.S.O. 1990, c. C.43.

[5] We leave the issue of costs thrown away on the motion for leave to be decided by the Court of Appeal.

Lederer J.

Kristjanson J.

Favreau J.

Date: July 9, 2021