Court File and Parties

CITATION: Wakely v. Hutton, 2024 ONSC 692

DIVISIONAL COURT FILE NO.: 025/24

DATE: 2024-01-31

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Kent Wakely, Appellant

AND: Susannah Hutton, Respondent

BEFORE: S. Shore J.

COUNSEL: Self-represented, for the Appellant K. Ballantyne, for the Respondent

HEARD at Toronto: January 29, 2024

Endorsement

[1] According to the Notice of Appeal, Mr. Wakely seeks to appeal the decision of Vella J., dated December 11, 2023, granting partial summary judgment. Mr. Wakely is appealing two aspects of the decision:

a. The order for the sale of the jointly owned property; and

b. The order dismissing his trust claim, and specifically that Ms. Hutton is holding her 50-percent interest in the property in trust for Mr. Wakely.

[2] The issue of jurisdiction of the Divisional Court was brought to the attention of the parties in advance of the case conference. Ms. Hutton requests that the matter be transferred to the Court of Appeal under s. 110 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”). Mr. Wakely ultimately did not object.

[3] As discussed at the case conference, this court does not have jurisdiction to hear an appeal from a partial summary judgment dismissing claims that, had the claim been successful, would amount to a sum of over $50,000.[^1] If Mr. Wakely is successful in his trust interest in the property, the interest is worth over $50,000.

[4] The Divisional Court does have jurisdiction to hear the appeal of the order for the sale of the jointly owned property,[^2] but this appeal is tied to Mr. Wakely’s claim that Ms. Hutton holds her 50-percent interest in the property in trust for Mr. Wakely. Pursuant to s. 6(2) of the CJA, the Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal.

[5] Section 110(1) of the CJA provides that where a proceeding or a step in a proceeding is brought or taken before the wrong court, judge or officer, it may be transferred or adjourned to the proper court, judge or officer. Having considered the circumstances of this case, this matter should be transferred to the Court of Appeal.

[6] Mr. Wakely was referred to s. 110(2), which provides that a proceeding that is transferred to another court under subsection (1) shall be titled in the court to which it is transferred and shall be continued as if it had been commenced in that court. Therefore, his efforts in preparing his material for the Divisional Court have not gone to waste.

“S. Shore”

Shore J.

Released: January 31, 2024

[^1]: The jurisdiction of the Divisional Court includes a final order of a judge of the Superior Court of Justice so long as financial limits are not exceeded: see the CJA, ss. 19(1)(a), 19(1.2), and 6(1)(b). This claim was dismissed under the Real Property Limitations Act, R.S.O. 1990, c. L. 15, which has no alternate route of appeal.

[^2]: See Partition Act, R.S.O. 1990, c. P.4., s.7: “An appeal lies to the Divisional Court from any order made under this Act.”