



COURT OF APPEAL FOR ONTARIO

CITATION: S.B. v. J.M., 2020 ONCA 575

DATE: 20200911

DOCKET: M51692

Brown
    J.A. (Motion Judge)

BETWEEN

S.B.

Moving Party

and

J.M.

Responding Party

S.B., acting in person

Adam Prewer, for the responding party

Heard: in writing

REASONS
    FOR DECISION

[1]

This motion in writing involves a request by the
    moving party, S.B., a senior member of the family law bar, for an order
    extending the time to file a notice of motion for leave to appeal the costs
    order of Fryer J. dated February 27, 2020.

[2]

S.B. brought a motion
    to remove Epstein Cole LLP (the Firm) as solicitors of record for his
    ex-wife, J.M. By order dated October 22, 2019 Fryer J. dismissed S.B.s motion.
    S.B. did not appeal that order.

[3]

By costs endorsement
    dated February 27, 2020 Fryer J. ordered S.B. to pay the Firm its costs of the
    motion fixed in the amount of $40,000.00 (the Costs Order).

[4]

On March 4, 2020 S.B.
    served a Notice of Appeal of the Costs Order, receipt of which was acknowledged
    the same day by the Firms counsel, the Lax OSullivan firm. However, the Notice
    of Appeal served by S.B. was a Form 38 Notice of Appeal under the
Family Law Rules
, which is used for appeals from the Ontario Court of Justice to the
    Superior Court of Justice, not for appeals from the Superior Court of Justice
    to the Court of Appeal.

[5]

S.B. had no right of
    appeal. Section 133(b) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43,
provides that no appeal lies without leave of the court where the appeal
    is only as to costs that are in the discretion of the court that made the order
    for costs.

[6]

Rule 61.03.1(3) of the
Rules of Civil Procedure
requires that a notice of motion for leave to appeal
    to the Court of Appeal be served within 15 days after the making of the order
    from which leave to appeal is sought and filed with the court within five days
    after service. In accordance with that rule, S.B. was required to serve a
    notice of motion for leave to appeal by Friday, March 13, 2020.

[7]

S.B. did not serve a
    notice of motion for leave to appeal by March 13, 2020.

[8]

On March 19, 2020 the
    Firm informed S.B. that he had not followed the proper appeal route and that
    his appeal was out of time.

[9]

Effective Monday, March
    16, 2020 O. Reg. 73/20 suspended the time periods contained in the
Rules of Civil Procedure
for any step in a proceeding. For proceedings before
    the Court of Appeal, the suspension expired effective July 16, 2020.

[10]

On July 20, 2020 S.B.
    served on the Firm a notice of motion for an extension of time to bring a
    motion for leave to appeal.

[11]

The Firm opposes the
    motion for an extension of time on several grounds, two of which are
    jurisdictional in nature. The Firm contends that S.B. has gone to the wrong
    court and should bring his motion for leave to appeal before the Divisional
    Court for two reasons.

[12]

First, the Firm submits
    that S.B.s motion properly belongs before the Divisional Court because, where
    only costs are under appeal, appellate jurisdiction depends upon the nature of
    the predicate order. Accordingly, the appeal of a costs order flowing from an
    interlocutory order of a Superior Court judge lies to the Divisional Court:
Godard v. Godard
, 2015 ONSC 3114, [2015] O.J. No. 2484, at para. 7. The Firm contends
    that an order dismissing a motion to remove a solicitor of record is
    interlocutory in nature.

[13]

Second, if the order is
    a final one, then the Firm argues the Costs Order constitutes a single
    payment order for less than $50,000, within the meaning of
CJA
ss.
    19(1)(a) and 19(1.2)(a). Since the Costs Order was for $40,000, an appeal (or request
    for leave to appeal) lies to the Divisional Court.

[14]

If the Firm is correct
    on either ground, then I lack the jurisdiction to make any order. In this
    court, decisions on jurisdictional questions are generally made by a panel of
    three judges, not by a single judge sitting in Chambers.

[15]

Consequently, I direct
    that this motion in writing be placed before a panel of three judges for
    consideration.

David
    Brown J.A.


