



COURT OF APPEAL FOR ONTARIO

CITATION: Wright v. Strauss, 2019 ONCA 844

DATE: 20191025

DOCKET: C66580

Hoy A.C.J.O., van Rensburg and Roberts JJ.A.

BETWEEN

John (Jack) Wright

Applicant (Appellant)

and

Jacqueline Strauss and Anne Urbanek on their own
    behalf and as Trustees of the Wright Family Trust

Respondents (Respondents)

Gregory M. Sidlofsky and Matthew M.A. Stroh, for the
    appellant

Andrew Finkelstein, for the respondents

Heard: October 8, 2019

On appeal from the
    order of Justice Michael A. Penny of the Superior Court of Justice, dated January
    15, 2019.

REASONS FOR DECISION

[1]

The appellant appeals from the order (Order) of the motion judge,
    dismissing the application he commenced in 2016 against his daughters, on their
    own behalf and as trustees of the Wright Family Trust (Trust). For the
    reasons that follow, we conclude that this court does not have jurisdiction to
    hear this appeal, and we order that this appeal be transferred to the
    Divisional Court.

[2]

The appellant also appealed from a second order (Second Order) of the
    motion judge, made at the same time, involving the same parties, and addressed
    in the same set of reasons as the Order. The appeal of the Second Order was
    properly made to this court and we dismissed that appeal:
Wright v. Urbanek
,
    2019 ONCA 823.

[3]

Pursuant to s. 255 of
Ontarios
Business
    Corporations Act
, R.S.O. 1990, c.
    B.16, as amended,
(OBCA), an appeal lies to the Divisional Court
    from an order made under the OBCA. The Order finally resolved issues in an
    oppression application brought under the OBCA and the proper route of appeal is
    to the Divisional Court:
Ontario Securities Commission v. McLaughlin
,
    2009 ONCA 280, 248 O.A.C. 54, at para. 16.

[4]

While the appellant concedes that an appeal from the Order would
    normally be to the Divisional Court, he asserts that s. 6(2) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43,
    as amended,
and r. 6.01(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, as amended,
permit this court to hear his appeal of the Order. Alternatively, he argues
    that this is one of those exceptional cases where it would be appropriate for
    Chief Justice of the Superior Court of Justice to designate this court as a
    panel of the Divisional Court for the purpose of hearing and determining the
    appeal.

[5]

We reject these arguments.

[6]

First, s. 6(2) of the
Courts of Justice Act
permits this court
    to hear and determine an appeal that lies to the Divisional Court if an appeal
    in the
same proceeding
lies to and is taken to
    this court. But the two appeals are not in the same proceeding. Although the
    motion judge released only one set of reasons, he issued two orders for two factually
    related but legally distinct proceedings, each with its own originating
    process: the Order, striking a notice of application regarding the transfer of
    a mortgage from a family company to the Trust; and the Second Order, striking a
    statement of claim challenging the validity of the Trust.

[7]

Second, r. 6.01(1) provides that [w]here two or more proceedings are
    pending in the court the court may, in the circumstances set out in that rule,
    order that the proceedings be heard together. However, this rule applies to
    proceedings in the same court, not proceedings in different courts:
Tomec
    v. Economical Mutual Insurance Company
,
2019 ONCA 839
, at para. 11.

[8]

Finally, while the combined effect of ss. 13 and 18 of the
Courts of
    Justice Act
enables three judges of the Court of Appeal to sit as a panel
    of the Divisional Court with the consent of the Chief Justice of the Superior
    Court of Justice and the Chief Justice of Ontario, as Trotter J.A. notes in
Tomec
,
    at para. 14, this court rarely reconstitutes itself as the Divisional Court.
    Doing so involves bypassing the Divisional Court. We are not persuaded that
    this is one of those rare instances where this court should reconstitute itself
    as the Divisional Court.

[9]

This is not a case where the jurisdictional issue was noticed only after
    the appeal had been argued: see
Villa Verde L.M. Masonry Ltd. v. Pier One
    Masonry Inc.
(2001), 54 O.R. (3d) 76 (C.A.), at para. 12. Here, the court
    notified the parties of the potential jurisdictional problem nearly four months
    before the scheduled hearing date and advised them that it is not this courts
    practice to take jurisdiction to hear an appeal if it concludes that the appeal
    was brought in the wrong court. The parties made no submissions to the court in
    response to the courts letter notifying the parties of the potential
    jurisdiction problem.

[10]

Moreover,
    it is not clear that the delay resulting from a transfer of the appeal of the
    Order to the Divisional Court will result in any real delay. In oral
    submissions, counsel for both parties agreed that if the appellant prevailed on
    his appeal from the Order, his application should be stayed pending completion
    of the steps remaining to be taken pursuant to the order of Conway J., dated
    October 7, 2016, made in the oppression application brought against the appellant
    by his daughters.

[11]

In
    the result, we order that this appeal from the Order be transferred to the
    Divisional Court.

Alexandra Hoy
    A.C.J.O.

K. van Rensburg J.A.

L.B. Roberts J.A.


