



COURT OF APPEAL FOR ONTARIO

CITATION: Dal Bianco v. Deem Management
    Services Limited, 2020 ONCA 488

DATE: 20200728

DOCKET: M51655 (C68214)

Jamal J.A.
    (Motions Judge)

BETWEEN

Donald Dal Bianco

Applicant (Appellant/Responding Parties)

and

Deem Management Services Limited and The Uptown Inc.

Respondents
    (Respondents/Responding Parties)

R. Brendan Bissell and Joël Turgeon,
    for the moving party, the Receiver, Crowe Soberman Inc.

David T. Ullmann, for the responding
    party, Donald Dal Bianco

Harold Rosenberger, for Deep
    Foundations Contractors Inc.

Edward L. DAgostino, for Kieswetter
    Excavating Inc.

Jeffrey A. Armel, for the responding
    party, EXP Services Inc.

Eric Gionet, for the responding party,
    Maxion Management Services Inc.

Heard: July 28, 2020 by videoconference

REASONS
    FOR DECISION

[1]

This motion seeks directions on whether this court or the Divisional
    Court has jurisdiction over this appeal and, if the Divisional Court has
    jurisdiction, whether the appeal should be transferred to the Divisional Court.

[2]

The order under appeal was made under s. 78 of the
Construction Act
,
    R.S.O. 1990, c. C.30, in the context of a receivership, to determine competing
    priorities between registered lien claimants and a registered mortgage. This
    priority dispute was separated from other contested issues in the receivership
    and adjudicated on an agreed statement of facts.

[3]

The jurisdictional issue arises because s. 71(1) of the
Construction
    Act
, if applicable, provides that an appeal lies to the Divisional Court, while
    s. 193 of the
Bankruptcy and Insolvency Act
, R.S.C. 1985, c. B.3, if
    applicable, provides that an appeal lies to the Court of Appeal, in some
    instances with leave of a judge of this court.

[4]

A single judge of this court lacks jurisdiction to decide this jurisdictional
    issue. It is settled that [q]uestions of whether an appeal lies within the
    jurisdiction of this court must be decided by a three-judge panel of this
    court and thus a single judge has no power to decide whether an appeal is
    within the jurisdiction of this court:
Ontario (Provincial Police) v.
    Assessment Direct Inc.
, 2017 ONCA 986, at para. 4; see also
Shinder v.
    Shinder
, 2017 ONCA 822, at para. 4. Although this motion is framed as a
    motion for directions, if I were to find that this court lacks jurisdiction I
    would in effect be quashing the appeal, which only a panel of this court has
    jurisdiction to order: see
Courts of Justice Act
, R.S.O. 1990, c.
    C.43, s. 7(3);
RREF II BHB IV Portofino, LLC v. Portofino Corporation
,
    2015 ONCA 906, at para. 6.

[5]

Accordingly, because I lack jurisdiction to decide the motion, the motion
    is adjourned to be heard by a panel of the court on September 3, 2020.

[6]

No order as to costs for todays attendance.

M.
    Jamal J.A.


