One can appeal to ONCA, with leave, from a Div Ct. order. A notice of motion for leave to appeal must be served within 15 days after the making of the order sought to be appealed.




Rescission of Real Estate Purchase for Misrepresentation of Square Footage on MLS In Lamba v. Mitchell, 2022 ONCA 164, the moving parties put an offer on a house and entered an APS but failed to close. They alleged, inter alia, that they were entitled to rescission of the agreement because of misrepresentation with respect to the square footage of the home in the MLS listing.On a motion for summary judgment, the Court found that the MLS listing did misstate the main floor area of the home but that the moving parties were aware of its actual size and layout as they had visited it before. As well, they had access to materials setting out the correct area and floor plan. In light of this, the Court below ordered that the moving parties’ deposit be forfeited. Test & Time for Leave To Appeal From Div. Ct. An appeal lies to ONCA, with leave, from an order of Div. Ct.. A notice of motion for leave to appeal must be served within 15 days after the making of the order sought to be appealed (para. 17). Under s.3.02(1) the court may extend the time to seek leave to appeal on such terms are just; the overarching principle is whether the justice of the case requires it. In deciding this, the court must consider:Whether the moving party formed an intention to appeal in the relevant period;The length of, and explanation for, the delay;Any prejudice to the responding party; and,The merits of the proposed appeal (para. 18).Before granting leave, the court must be satisfied that the proposed appeal presents an arguable question of law, or mixed fact and law, requiring consideration of matters such as the interpretation of legislation, the interpretation of, clarification, or propounding of some general rule or principle of law, or the interpretation of an agreement or by-law where the point in issue involved a question of public importance. The court will also grant leave when the interests of justice require it, for matters of public importance, and to correct clear errors in a judgment below (para 20). A lack of merit alone is sufficient to dispose of a motion for an extension (para. 25). Disposition The appeal was dismissed, and no palpable and overriding error or error of law were found (para. 15).

April 14, 2022
Lamba v. Mitchell, 2022 ONCA 164