numerous case examples are provided in the annotated Rules of Civil Procedure texts. Also, counsel should search for appellate decisions on matters similar to their client’s case, specifically identifying the governing statute, if any. Such appellate decisions may also indicate whether leave to appeal had been required. What if You Find Yourself in the Wrong Court Proceeding in the court should obviously be avoided. However, s. 110 of the Courts of Justice Act provides that matters brought in the wrong court may be transferred or adjourned to the proper court. Thus, for example, the Divisional Court has discretion to transfer an appeal to the Court of Appeal, if the appeal is properly within the jurisdiction of the Court of Appeal. The alternative is to dismiss the appeal for lack of jurisdiction. As noted in Verma v. Nagra, supra, factors to be considered in deciding whether to order a transfer are: does the appellant have a meritorious appeal (in the sense that it is arguable); will the respondent suffer undue prejudice because of further delay in having the appeal heard by the Court of Appeal; and did the appellant move expeditiously, once jurisdiction was disputed. The best practice, however, is to give serious thought to each of the above-mentioned factors and if in doubt conduct the proper research to ensure that the appeal is brought in the correct venue. In my next article, I will deal with drafting the Notice of Appeal. Ken Peacocke
numerous case examples are provided in the annotated Rules of Civil Procedure texts. Also, counsel should search for appellate decisions on matters similar to their client’s case, specifically identifying the governing statute, if any. Such appellate decisions may also indicate whether leave to appeal had been required. What if You Find Yourself in the Wrong Court Proceeding in the court should obviously be avoided. However, s. 110 of the Courts of Justice Act provides that matters brought in the wrong court may be transferred or adjourned to the proper court. Thus, for example, the Divisional Court has discretion to transfer an appeal to the Court of Appeal, if the appeal is properly within the jurisdiction of the Court of Appeal. The alternative is to dismiss the appeal for lack of jurisdiction. As noted in Verma v. Nagra, supra, factors to be considered in deciding whether to order a transfer are: does the appellant have a meritorious appeal (in the sense that it is arguable); will the respondent suffer undue prejudice because of further delay in having the appeal heard by the Court of Appeal; and did the appellant move expeditiously, once jurisdiction was disputed. The best practice, however, is to give serious thought to each of the above-mentioned factors and if in doubt conduct the proper research to ensure that the appeal is brought in the correct venue. In my next article, I will deal with drafting the Notice of Appeal. Ken Peacocke