Dunnington v. 656956 Ontario Ltd., (1992) 54 O.A.C. 345 (DC)

• Judge: Rosenberg, McKeown and Bell, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: November 28, 1991
• Jurisdiction: Ontario
• Citations: (1992), 54 O.A.C. 345 (DC)

Dunnington v. 656956 Ont. Ltd. (1992), 54 O.A.C. 345 (DC)

MLB headnote and full text

George Cecil Dunnington (applicant/respondent in appeal) v. 656956 Ontario Ltd. and Federal Business Development Bank (respondents/appellants in appeal)

(No. 119/91)

Indexed As: Dunnington v. 656956 Ontario Ltd.

Ontario Court of Justice

General Division

Divisional Court

Rosenberg, McKeown and Bell, JJ.

February 17, 1992.

Summary:

A party filed an appeal in the wrong court and moved under s. 123 of the Courts of Justice Act to transfer the appeal to the proper court.

The Ontario Divisional Court dismissed the motion.

Practice - Topic 2810

Curative provisions - Curing proceeding taken in the wrong court - Courts of Jus­tice Act, s. 123 - A party filed an appeal in the wrong court and moved for a trans­fer under s. 123 - The Ontario Divisional Court stated that the authority to transfer a proceeding to the proper court under s. 123 was a discretionary power - The court dismissed the motion because of the party's delay, the little chance of success on appeal and the continuing prejudice to the opposite party.

Statutes Noticed:

Courts of Justice Act, S.O. 1984, c. 11, sect. 123 [para. 2].

Counsel:

Stuart Herbert, for the applicant;

Robert D. Hammond, for the respondents.

This appeal was heard by Rosenberg, McKeown and Bell, JJ., of the Ontario Divisional Court on November 28, 1991. The decision of the court was delivered orally by Rosenberg, J., on February 17, 1992.