



COURT OF APPEAL FOR ONTARIO

CITATION: Shinder v. Shinder, 2017 ONCA 822

DATE: 20171025

DOCKET: M48418 & M48440 (C64169)

Nordheimer J.A. (In Chambers)

BETWEEN

Randi Joy Cogan Shinder

Applicant (Respondent)

(Responding Party/Moving Party in M48440)

and

Neil Allen Shinder

Respondent (Appellant)

(Responding Party/Moving Party in M48418)

and

Solomon Shinder

Respondent

(Responding Party)

Harold Niman & Venessa Amyot, for the
    appellant/moving party in M48440

Jaret N. Moldaver, for the respondent/moving party in
    M48418

Erin Crawford, for the responding party Solomon Shinder

Heard:  October 24, 2017

ENDORSEMENT

[1]

Neil Shinder appeals from the order of J. Wilson J. dated July 13, 2017
    that granted what I would characterize as partial summary judgment in favour of
    Randi Shinder.  Because of uncertainty over whether the order in question is a
    final or interlocutory order, Neil Shinder filed a Notice of Appeal in this
    court and a motion for leave to appeal in the Divisional Court.  The appeal in
    this court has been perfected and is scheduled to be heard on January 25,
    2018.  The motion for leave to appeal is scheduled to be heard in writing on
    October 27, 2017.

[2]

Neil Shinder now brings a motion for directions in which he seeks an
    order that the motions for leave to appeal to the Divisional Court brought by
    the Respondent/Appellant and the Respondent, Sol Shinder, be heard by the Court
    of Appeal.  Randi Shinder opposes that relief and brings a cross-motion to
    adjourn the hearing of the appeal and for an extension of time to file her
    responding materials.

[3]

There are two problems with the relief that the appellant seeks.  First,
    this court does not have jurisdiction to determine a motion for leave to appeal
    that is brought before the Divisional Court.  Section 6(2) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43 permits this court to hear an appeal
    that lies to the Divisional Court, but only where there is an appeal in the
    same proceeding in this court.  However, an appeal does not lie to the
    Divisional Court unless and until leave to appeal has been granted:
Waldman
    v. Thomson Reuters Canada Ltd
., 2015 ONCA 53.

[4]

Second, even if I had jurisdiction to transfer the matter from the Divisional
    Court to this court, in order to make that order, I would have to decide that
    the order in question is a final order and properly appealed to this court.  In
    my view, it is not appropriate for a motions judge to make that determination. 
    That issue, which is squarely raised by this motion, is a question of
    jurisdiction and that question is properly determined by the panel hearing the
    appeal or, alternatively, by a panel on a motion to quash, if such a motion is
    brought by the respondent.

[5]

I have been referred to the endorsement of Epstein J.A. in
Klasios
    v. Klasios
, (May 1, 2015), Toronto, M44974 (Ont. C.A.).  It is argued that
    that decision concluded that a motions judge could determine a jurisdiction
    issue.  I do not agree, at least in respect of the issue that is presented here.
    Justice Epstein was addressing whether an extension of time to file a Notice of
    Appeal should be granted.  Because of certain concessions that appear to have
    been made by counsel in that case, Epstein J.A. concluded that the order in
    question was clearly interlocutory and thus an extension of time to appeal ought
    not to be granted since the matter was not properly before this court.  I note
    that Epstein J.A. said, at the outset of her endorsement at para. 2: I do not
    have jurisdiction to decide the jurisdiction question.

[6]

In reaching the conclusion that I have, I am mindful of the costs that
    parties can incur when confusion arises over the proper appeal route.  This is
    not the first time that parties have had to launch proceedings both in this
    court and in the Divisional Court because of the uncertainty over whether an
    order is final or interlocutory.  This problem is inherent when the appeal
    route depends on a distinction between final and interlocutory orders.  It is a
    problem that has plagued both judges and lawyers for a long time and which was aptly
    captured by Laskin J.A. in
Capital Gains Income Streams Corp. v. Merrill
    Lynch Canada Inc.
, 2007 ONCA 497, 87 O.R. (3d) 443, where he said, at
    para. 36:

The distinction between final and interlocutory orders bedevils
    this court. Far too much ink has been spilled over the pages of the Ontario
    Reports, grappling with this distinction. Even when the parties themselves do
    not raise the issue, the court itself often feels compelled to do so

as it did in this case

because the court's
    jurisdiction to hear an appeal turns on the distinction: final orders are
    appealable as of right to this court; interlocutory orders are not.

[7]

The problem also drew the attention of the Honourable Colter Osborne in
    his Civil Justice Reform Project.  He recommended that the Civil Rules
    Committee consider the issue and, hopefully, make recommendations to the
    Attorney General for a legislative amendment to the
Courts of Justice Act
that would jettison the final/interlocutory distinction (Honourable Coulter
    A. Osborne,
Civil Justice Reform Project: Summary of Findings &
    Recommendations
(November 2007), at p. 105).  That has not happened.

[8]

Unless the problem is addressed in some such fashion, this situation
    will continue to occur and parties will be put to avoidable expense.  None of
    that changes the fact, however, that it is a panel of this court that must
    determine the jurisdiction issue, not a motions judge.  The decision of a motions
    judge is not binding on a panel:
Courts of Justice Act
, s. 7(5).

[9]

The motion by the appellant for directions is dismissed.

[10]

In
    terms of the cross-motion, the appellant does not object to an extension of
    time for the respondent to file her responding materials.  The respondents
    request for a two-week extension is granted.

[11]

The
    respondent also asked for the hearing of the appeal to be adjourned because her
    counsel may be called to trial in Brampton during that time.  The appellant
    objected to that request.  I will not adjourn the appeal for that reason.  If
    counsel is called to trial, I fully expect that the presiding judge will grant
    him a one-day absence in order for him to attend in this court to argue the
    appeal.

[12]

The
    parties are agreed that the costs of these motions should be fixed at $5,000. 
    They do not agree, however, on their disposition.  The main issue raised by
    this motion turns on whether the appellant is properly before this court for
    his appeal.  Consequently, I would fix the costs of these motions at $5,000,
    inclusive of disbursements and HST, but leave the disposition of those costs to
    the panel hearing the appeal.

I.V.B. Nordheimer
    J.A.


