



COURT OF APPEAL FOR ONTARIO

CITATION: Hilson v. Evans, 2021 ONCA 318

DATE: 20210511

DOCKET: M52440 (C68133)

Nordheimer J.A. (Motions Judge)

BETWEEN

Janet Louise Hilson

Moving Party (Appellant)

and

Carole Evans

Responding Party (Respondent)

Howard W. Reininger, for the moving
    party

Orie H. Niedzviecki, for the responding
    party

Heard: May 11, 2021 by video conference

ENDORSEMENT

[1]

The appellant brings this motion for an order
    transferring this appeal to the Divisional Court in Hamilton. The appeal was quashed
    by this court on April 19, 2021  see
Hilson v. Evans
, 2021 ONCA 262.

[2]

I raised the issue whether I have jurisdiction
    to make such an order after the appeal has been quashed. In response, counsel
    for the appellant referred me to the decision in
Sprenger v. Paul Sadlon
    Motors Inc.
,
2006 CarswellOnt 6004, in which this court quashed an appeal
    on the basis that the order in question was interlocutory but also granted an
    order transferring the motion for leave to appeal to the Superior Court. The
    appellant submits that this decision shows that there remains a basis to
    transfer a quashed appeal under s. 110(1) of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43.

[3]

It seems to me that there is a significant
    difference between seeking the transfer of an appeal at the time that it is
    quashed and doing so some weeks after it has been quashed. I am not convinced
    that there is currently an appeal left to transfer.

[4]

However, I do not have to decide that issue in
    this case because there is another problem with the appellants request. The
    respondent says that counsel asked the panel to transfer the appeal to the
    Divisional court at the time, but they declined. The appellant says that there
    is no evidence on that point and also notes that there is no reference to that
    fact in the oral reasons given by the court.

[5]

I have reviewed the recording of the hearing. It
    is clear that counsel for the appellant did ask for the appeal to be
    transferred to the Divisional Court and that the panel declined to do so. A
    single judge cannot reverse that decision. However, even if that request had
    not been made, I do not believe that a single judge has jurisdiction to grant
    relief that could have been, but was not, sought from the panel hearing the appeal.

[6]

Consequently, the appellants only remedy is to
    start the appeal anew in the Divisional Court. If an extension of time is
    necessary, then it will have to be sought from the Divisional Court.

[7]

The motion is dismissed. The respondent is
    entitled to her costs of the motion which I fix in the amount of $2,500,
    inclusive of disbursements and HST.

I.V.B.
    Nordheimer J.A.


