



COURT OF APPEAL FOR ONTARIO

CITATION: Webster v. Groszman, 2021 ONCA 55

DATE: 20210127

DOCKET: C68338

Roberts, Zarnett and Sossin JJ.A.

BETWEEN

Andrew Webster

Applicant

(Respondent)

and

Gary Groszman
and 3461505 Canada Inc. c.o.b.
    as Biltmore Domicile

Respondents

(
Appellant
)

Gary Groszman, acting in person

Nathaniel Read-Ellis, for the respondent

Heard: January 25, 2021 by
    video conference

On appeal
    from the order of Justice William S. Chalmers of the Superior Court of Justice,
    dated April 23, 2020.

REASONS FOR
    DECISION

[1]

The appellant appeals from the order
    interpreting and enforcing the parties settlement agreement pursuant to a
    motion brought in the respondents application under the
Partition Act
,
    R.S.O. 1990, c. P.4.

[2]

By letter from the office of this courts Senior
    Legal Officer, dated September 3, 2020, the parties were asked to address a
    preliminary issue concerning this courts jurisdiction to hear this appeal.
    Under s. 7 of the
Partition Act
, an appeal from any order made under
    the
Act
lies to the Divisional Court.

[3]

In oral submissions, the appellant did not advance
    a position about this courts jurisdiction. However, he asked that this appeal
    be transferred to the Divisional Court if this court determined it did not have
    jurisdiction to hear the appeal.

[4]

The respondent submitted that this appeal
    properly lies to the Court of Appeal because the order under appeal concerns
    the interpretation and enforcement of a settlement agreement and was not an
    order made under the
Partition Act
. Alternatively, the respondent
    asked that this court seek leave to sit as a panel of the Divisional Court to
    hear the appeal.

[5]

We do not accept the respondents submissions.

[6]

The order under appeal was clearly an order made
    under the
Partition Act
. A brief procedural background of the
    proceedings suffices to explain why.

[7]

The appellant and the respondent were co-owners
    of commercial properties in Toronto and Montr
é
al. The parties relationship broke down and applications were brought
    for the partition and sale of these properties. The motion judge heard the respondents
    application respecting the Toronto property, ordered and oversaw the sale and the
    distribution of the proceeds from the sale, including the approval of the
    agreement of purchase and sale, and ordered an accounting of all the revenue
    and expenses of the Toronto property. Prior to closing, the parties settled their
    disputes involving the Toronto and Montr
é
al properties, including settling what would otherwise have been
    determined on the accounting relating to the Toronto property. However, following
    the settlement, an issue arose as to who should bear the responsibility for the
    costs of closing open permits for work to be completed on the Toronto property.
    The motion judge determined the appellant was responsible for these costs. The
    appellant appeals from this order.

[8]

The motion resulting in the order under appeal
    was brought in the application commenced under the
Partition Act
, and
    not by way of a separate proceeding, before the motion judge who was case-managing
    the application. However, the procedure followed is only one factor. More
    importantly, the focus of the motion was on the Toronto property, and the order
    flowed from the relief sought in the application for the partition and sale of
    the Toronto property, including the disposition of the net proceeds from that
    sale and the accounting of the revenue and expenses of that property. That the
    parties also elected to include the settlement of their Montr
é
al property dispute in the same settlement
    agreement does not alter the fact that the order made was with respect to
    matters that fall squarely under the
Partition Act
.

[9]

As a result, this court does not have
    jurisdiction to hear this appeal. The appeal lies to the Divisional Court pursuant
    to s. 7 of the
Partition Act
.

[10]

We decline to seek permission from the Chief
    Justice of the Superior Court of Justice to designate this panel as a panel of the
    Divisional Court. Such an order is made in exceptional circumstances that are
    not present in this case: see
Punit v. Punit
, 2014 ONCA 252, 43 R.F.L.
    (7th) 84, at para. 18.

Disposition

[11]

We therefore transfer this appeal to the
    Divisional Court pursuant to s. 110 of the
Courts of Justice Act
.
    While we cannot order an expedited appeal, we agree that it would be in the
    parties best interests to obtain the earliest appeal date available.

[12]

Given the circumstances, we leave the costs of
    this appeal to be determined by the Divisional Court on the hearing of the appeal.

L.B.
    Roberts J.A.

B. Zarnett
    J.A.

Sossin
    J.A.


