



COURT OF APPEAL FOR ONTARIO

CITATION: 2650971 Ontario Inc. v. Shameti,
    2022 ONCA 62

DATE: 20220124

DOCKET: C69565

Pardu, Roberts and Miller JJ.A.

BETWEEN

2650971
    Ontario Inc. and

Kouraj Rahimi-Aloughareh a.k.a.
    Cyrus Rahimi

Applicants

(Respondents)

and

Durim Shameti and Anila Shameti

Respondents

(Appellants)

Harneet Singh and Obaidul Hoque, for
    the appellants

Michael A. Katzman, for the respondents

Heard: January 20, 2022 by
    video conference

On appeal
    from the judgment of Justice Jana Steele of the Superior Court of Justice dated
    June 1, 2021.

REASONS FOR DECISION

[1]

This is an appeal from a judgment ordering the
    sale of a property that the parties had purchased for renovation and resale
    (the investment property) in furtherance of the parties joint venture.

[2]

There was no dispute that both sides made
    financial contributions to the down payment on the investment property. The investment
    property was purchased, and title was taken in the names of the appellants, who
    are spouses. The application judge found that the investment property was held
    by the appellants as bare trustees for the benefit of the corporate respondent,
    2650971 Ontario Inc., or for the three parties to the joint venture, the
    respondent, Mr. Rahimi, and the appellants.

[3]

The parties joint venture foundered. The
    respondents brought an application for declaratory relief respecting the title
    to and ownership of the investment property, and an order for partition and
    sale. The application judge made an order for the sale of the investment
    property and a reference to a Master (now Associate Justice) of the Superior
    Court to determine the apportionment of the sales proceeds and the disposition
    of costs as between the parties.

[4]

The disposition of this appeal turns on a
    preliminary jurisdictional issue. Section 7 of the
Partition Act
,
    R.S.O. 1990, c. P.4, provides that [a]n appeal lies to the Divisional Court
    from any order made under this Act. On August 3, 2021, the Executive Legal Officer
    of this court alerted the parties to the possible jurisdictional issue that s.
    7 of the
Partition Act
may apply to this appeal such that the appeal
    lies to the Divisional Court, and asked them to be prepared to address the
    preliminary issue concerning this courts jurisdiction to hear the appeal.

[5]

The appellants maintain that this court has
    jurisdiction to hear this appeal because the application judges judgment
    finally disposed of the application. The order for sale of the investment
    property was only part of the relief sought by the respondents. As the issue of
    partition and sale was intertwined with other issues that were finally disposed
    of, this court has jurisdiction to hear the appeal.

[6]

The respondents acknowledge that this appeal
    lies within the jurisdiction of the Divisional Court; however, they have no
    objection if this court agrees to hear the appeal.

[7]

We do not agree that this court has
    jurisdiction to hear this appeal. The parties cannot confer jurisdiction on
    this court by agreement.

[8]

Section 7 of the
Partition Act
plainly stipulates that an appeal from an order made under the Act lies to the
    Divisional Court. The judgment under appeal clearly ordered the sale of the
    parties investment property pursuant to the
Partition Act
. This
    remedy was expressly sought in the respondents application. That the
    respondents also included other issues and heads of relief in their application
    does not alter the fact that the judgment made was with respect to matters that
    fall squarely under the
Partition Act: Webster v. Groszman
, 2021 ONCA
    55, at para. 8.

[9]

As a result, in accordance with s. 7 of the
Partition
    Act
, an appeal from the judgment lies to the Divisional Court. This court
    has no jurisdiction to hear the appeal.

Disposition

[10]

The appeal is therefore quashed.

[11]

The appellants shall pay the respondents their appeal costs
    in the amount of $12,000.00, inclusive of disbursements and applicable taxes.

G.
    Pardu J.A.

L.B.
    Roberts J.A.

B.W.
    Miller J.A.


