The Ontario Court of Appeal’s April 2, 2014 decision in Punit v. Punit illustrated two issues in appellate practice, one specific and one general. First, the Court addressed the specific issue of the proper court in which to bring an appeal of an order made under Ontario’s Partition Act. It concluded that the Divisional Court is the proper court. Second, and more generally, the Court noted that practicalities must be considered when determining how to dispose of an appeal brought to the wrong court when time is of the essence. In the result, the Court designated a panel of the Divisional Court to hear the appeal and its disposition recognized the practical time constraints raised in the case. The Court expressly stated that this was an exceptional result.

The case arose in the family law context. The respondent sought and obtained an order in the Superior Court, on a motion, that the matrimonial home be sold, pursuant to the Partition Act. The appellant had sought an order on cross-motion permitting her to purchase the respondent’s interest in the home and, in the alternative, an order that the motion for sale be adjourned to the trial. She appealed to the Court of Appeal. The Court of Appeal stayed the sale order pending appeal. Although the respondent raised the issue of jurisdiction on the motion to stay, Blair J.A. declined to make a final determination on jurisdiction given that the Court of Appeal had previously heard appeals from orders under the Partition Act.

The respondent renewed his jurisdictional arguments before the panel of the Court of Appeal. He relied on s. 7 of the Partition Act, which states “An appeal lies to the Divisional Court from any order made under this Act.”

The appellant pointed to other cases where the Court of Appeal had heard an appeal from a final order of the Superior Court for the sale of a matrimonial home. However, Juriansz J.A. noted that none of the cases provided authority for the Court of Appeal to assume jurisdiction on the facts in this case. He noted:

[11] In several of the cases relied on by the appellant, the appeal from one or more parts of the order lay to the Court of Appeal, while the appeal from another part of the order lay to the Divisional Court. In these cases, the Court of Appeal had jurisdiction pursuant to s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Section 6(2) provides that “the Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal.” … In the present case, the only matter under appeal is the order for sale under the Partition Act.

[13] In the remaining cases, the court did not address its jurisdiction in light of s. 7 and the question seems not to have been raised. …

Juriansz J.A. also rejected the appellant’s alternative argument based on the motions judge acting without jurisdiction by failing to consider the Family Law Act, giving the Court of Appeal the right to correct his jurisdictional error:

[17] We do not accept this argument. The Court of Appeal made clear in Silva that the Family Law Act does not oust the court’s jurisdiction under the Partition Act. In fact, in Silva, the court upheld a pre-trial order for partition and sale under the Partition Act. The motions judge did not act without jurisdiction.

[18] The sale order expressly states that it is pursuant to the Partition Act. This is the only provision of the order from which the appellant appeals. We conclude that an appeal from the order of the motions judge lies to the Divisional Court pursuant to s. 7 of the Partition Act. This appeal was brought to the wrong court. …

Having said that, the Court was aware of the practicalities of the situation before it, as the matrimonial trial was to begin less than three weeks after the Court of Appeal’s decision. These exceptional circumstances were held to justify an exceptional result:

[18] Ordinarily, we would order [the appeal] transferred to the Divisional Court under s. 110 (1) of the Courts of Justice Act. However, the exceptional circumstance in this case is that the trial of the matrimonial proceeding is scheduled for April 21, 2014. In these special circumstances, the Chief Justice of the Superior Court of Justice has agreed to designate us as a panel of the Divisional Court to hear and determine this appeal.

On the merits, Juriansz J.A. favoured a practical result, setting aside the order for sale and holding that all remaining issues be determined in the trial:

[22] From a practical perspective, the trial in these proceedings is scheduled to begin on April 21, 2014. Since the motion was heard, the respondent has been able to live without any funds from the sale of the home. The appellant has been able to live in the home and the ongoing expenses associated with the home have been met. Even if the order for partition and sale were upheld by this court, it is unlikely the house would be sold before trial. If the house were sold, rule 66.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 would require that the monies be paid into court. The respondent would not be able to receive any funds before trial.

[23] For these reasons, I would allow the appeal, set aside the sale order, and allow this and any other remaining issues between the parties to proceed to trial. …