|
Appeals - The $50k Dividing Line [CJA 19]. Wakely v. Hutton
In Wakely v. Hutton (Div Court, 2023) the Divisional Court considered a messy appeal route issue where the appellant had filed in the Divisional Court. The case was ulimately transferred to the Court of Appeal:[3] As discussed at the case conference, this court does not have jurisdiction to hear an appeal from a partial summary judgment dismissing claims that, had the claim been successful, would amount to a sum of over $50,000.[1] If Mr. Wakely is successful in his trust interest in the property, the interest is worth over $50,000.
[4] The Divisional Court does have jurisdiction to hear the appeal of the order for the sale of the jointly owned property,[2] but this appeal is tied to Mr. Wakely’s claim that Ms. Hutton holds her 50-percent interest in the property in trust for Mr. Wakely. Pursuant to s. 6(2) of the CJA, 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.
[5] Section 110(1) of the CJA provides that where a proceeding or a step in a proceeding is brought or taken before the wrong court, judge or officer, it may be transferred or adjourned to the proper court, judge or officer. Having considered the circumstances of this case, this matter should be transferred to the Court of Appeal.
[6] Mr. Wakely was referred to s. 110(2), which provides that a proceeding that is transferred to another court under subsection (1) shall be titled in the court to which it is transferred and shall be continued as if it had been commenced in that court. Therefore, his efforts in preparing his material for the Divisional Court have not gone to waste. . Deng v. Han
In Deng v. Han (Ont CA, 2023) the Court of Appeal considered (and granted) a motion to quash an appeal, here on grounds that jurisdiction lay with the Divisional Court due to the amount ordered at trial:[2] In her statement of claim, the respondent sought damages of $50,000 plus punitive damages of $50,000. The trial judge awarded the respondent $39,797.26 plus costs of $52,667.55. He dismissed the claim for punitive damages.
[3] The relevant statutory provisions regarding appellate jurisdiction are as follows. Section 6(1)(b)(i) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that an appeal lies to this court from a final order of a judge of the Superior Court of Justice, except an order under s. 19(1)(a). Section 19(1)(a) states that an appeal lies to the Divisional Court from a final order of a judge of the Superior Court of Justice. In this case, the following subsections are relevant: s. 19(1.2) (a) an appeal from an order for a single payment of not more than $50,000, exclusive of costs (the award of $39,797.26); and (c) appeal from an order dismissing a claim for an amount that is not more than $50,000 (claim for punitive damages).
[4] In these circumstances, this court has no jurisdiction to hear the appeal. It is within the jurisdiction of the Divisional Court. See: Harte-Eichmanis v. Fernandes, 2012 ONCA 266. . Walcott v. Toronto Transit Commission
In Walcott v. Toronto Transit Commission (Ont CA, 2021) the Court of Appeal held that the dollar value of a dismissed claim is not reduced to zero for purposes of determining the appeal route (ie. whether to the Court of Appeal or the Divisional Court if under $50,000), it is the amount claimed in pleadings:[2] As a preliminary matter, the respondent submitted in its factum that this appeal should have been brought to the Divisional Court. We reject that submission. The appellant’s claim was for $2,000,000 for copyright infringement. The motion judge found no liability and dismissed the action. However, he did not find that the value of the claim was under $50,000. A final order that dismisses an action on the basis of no liability does not have the effect of quantifying the damages at zero dollars. If it did, then every appeal from the dismissal of an action would be to the Divisional Court, rather than only those where the value of the damages claimed or quantified is under $50,000, contrary to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43: see Harte-Eichmanis v. Fernandes, 2012 ONCA 266, 15 R.F.L. (7th) 1, at paras. 13-14. . Jay-Pee Drycleaners Inc. v. 2321324 Ontario Inc.
In Jay-Pee Drycleaners Inc. v. 2321324 Ontario Inc. (Ont CA, 2021) the Court of Appeal transferred a case to the Divisional Court:[4] This court has jurisdiction to hear appeals from final orders of the Superior Court of Justice, with certain exceptions. One of those exceptions, set out in s. 19(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, is where the amount ordered to be paid is not more than $50,000. The amount awarded in this case falls into that exception. . Hanisch v McKean
In Hanisch v McKean (Ont CA, 2014), under s.19 of the Courts of Justice Act, an appeal of a final order "for a single payment of not more than $50,000, exclusive of costs" lies to the Divisional Court. In this case the respondent/plaintiff sued for over $100,000 and ancillary declaratory relief, but only obtained monetary judgment for $25,500 and a declaration that the defendant/appellant did not have a prescriptive easement. The appellant/defendant appealed only the monetary aspects of the judgment. The respondent/plaintiff argued that the Court of Appeal lacked jurisdiction to hear the appeal since the award was under $50,000. However the Court of Appeal disagreed, focussing on whether the term "final order" referred solely to the issues appealed, or to the entire judgment. The Court of Appeal preferred the latter interpretation, and thus - since the final judgment contained a 'declaration' respecting rights - it held that it had jurisdiction in the appeal.
. Pullano v. Hinder
In Pullano v. Hinder (Div Ct, 2021) the Divisional Court considered at length the appeal jurisdiction of the Divisional Court under CJA 19(1.2)(a) and (b):III. Jurisdiction
[7] The plaintiff argues that the Divisional Court has jurisdiction to hear his appeal under ss. 19(1)(a) and (1.2) of the Courts of Justice Act, R.S.O. 1990, c. C.43. For the reasons below, I disagree.
[8] Under s. 19(1)(a), the Divisional Court has jurisdiction over an appeal from a final order of the Superior Court under ss. 19(1.1) and 19(1.2). Otherwise, an appeal from a final order of the Superior Court lies to the Court of Appeal under s. 6(1)(b).
[9] Section 19(1.1), which relates to appeals filed before October 1, 2007, has no application in this case. Section 19(1.2) relates to appeals filed on or after October 1, 2007, as in this case. Section 19(1.2) provides as follows:19(1.2) If the notice of appeal is filed on or after October 1, 2007, clause (1)(a) applies in respect of a final order,
(a) for a single payment of not more than $50,000, exclusive of costs;
(b) for periodic payments that amount to not more than $50,000 exclusive of costs, in the 12 months commencing on the date the first payment is due under the order;
(c) dismissing a claim for an amount that is not more than the amount set out in clause (a) or (b); or
(d) dismissing a claim for an amount that is more than the amount set in clause (a) or (b) and in respect of which the judge or jury indicates that if the claim had been allowed the amount awarded would have been not more than the amount set out in clause (a) or (b). [10] The Divisional Court does not have jurisdiction over this appeal under any of the provisions of s. 19(1.2).
[11] Sections 19(1.2)(a) and (b) relate to appeals from a final order for a monetary amount, setting $50,000 as the cut-off for determining whether the Divisional Court has jurisdiction. Those two provisions have no application in this case, since no monetary amount was awarded in the plaintiff’s action.
[12] Sections 19(1.2)(c) and (d) relate to a final order dismissing a claim. Under s. 19(1.2)(c), the Divisional Court has jurisdiction over an appeal from a final order dismissing a claim for $50,000 or less. In the Statement of Claim, the plaintiff claimed general damages of $500,000 and punitive damages of $1,000,000. Those amounts exceed $50,000. Therefore, the Divisional Court does not have jurisdiction to hear this appeal under s. 19(1.2)(c).
[13] Under ss. 19(1.2)(d), the Divisional Court has jurisdiction over an appeal from a final order dismissing a claim for more than $50,000, but only if the trier of fact “indicates that if the claim had been allowed the amount awarded would have been not more than [$50,000]”. The plaintiff’s claim was more than $50,000, but the jury made no determination (nor was it asked a question) as to the amount it would have awarded if the claim had been allowed. Where the damages are indeterminate (that is, remain to be determined) and the claim for damages is for more than $50,000, the Divisional Court does not have jurisdiction to hear the appeal under s. 19(1.2)(d): see Hearn v. McLeod Estate, 2019 ONCA 682, 439 D.L.R. (4th) 217, at paras. 11 and 12; Mars v. Canada Inc. v. Bemco Cash & Carry Inc., 2017 ONSC 3399, 146 C.P.R (4th) 263 (Div. Ct.), at para. 14.
[14] I have some difficulty addressing the plaintiff’s position relating to the basis for this court’s jurisdiction over the appeal, since the submissions of plaintiffs’ counsel on this issue provided somewhat of a moving target.
[15] One of the substantive issues to be determined in the appeal is whether the judgment should have included an award of nominal damages (one dollar) to the plaintiff for battery based on the jury’s finding (in answer to the first jury question) that Mr. Hinder punched the plaintiff. However, the judgment as issued did not award any amount to the plaintiff. Therefore, plaintiff’s counsel properly conceded that ss. 19(1.2)(a) and (b) do not apply, since the judgment relating to the plaintiff’s action does not include a monetary award.
[16] In his oral submissions, plaintiff’s counsel relied on ss. 19(1.2)(c) and (d) as providing the Divisional Court with jurisdiction over the appeal. He directed the court to the Court of Appeal decision Harte-Eichmanis v. Fernandes, 2012 ONCA 266, 16 R.F.L.(7th) 1. That decision involved an appeal from a judgment following a jury trial in motor vehicle litigation on the issue of damages alone, the defendant having admitted liability. The jury awarded the injured plaintiff general damages of $40,000 (being $10,000 net of the statutory deductible) and awarded no damages to her spouse under the Family Law Act, R.S.O. 1990, c. F.3. In these circumstances, the Court of Appeal found that the Divisional Court had jurisdiction under s. 19(1.2)(a) because the order was for the payment of less than $50,000: see Harte-Eichmanis, at para. 15. The court also noted (at para. 16) that the amount the injured party claimed (which was greater than $50,000) was not relevant in the determination of jurisdiction in these circumstances.
[17] As well, in its comments about the general scheme of s. 19(1.2), the court in Harte-Eichmanis noted that the Divisional Court has jurisdiction under ss. 19(1.2)(c) or (d) in the following circumstances: (i) “if the amount of a claim is not determined or is assessed at less than $50,000” (at para. 13); and (ii) “where the court finds no liability, or some other reason not to award damages that are otherwise proven or assessed at less than $50,000” (at para. 14), citing Sherman v. 21 Degree Heating and Air Conditioning Inc. (2008), 77 C.L.R.(3d) 289 (Ont. Div. Ct.).
[18] Based on the court’s reasons in Harte-Eichmanis, plaintiff’s counsel calls into question whether it is appropriate to rely on the amount claimed in the Statement of Claim to determine whether ss. 19(1.2)(c) or (d) apply in this case. I see no basis for that concern. That is what the court did in Sherman, at paras. 1 and 4, a case cited with approval in Harte-Eichmanis.
[19] Sherman was an appeal from the trial judge’s decision, dismissing the plaintiffs’ claim for damages for breach of contract and negligence. In the statement of claim, the plaintiffs had initially claimed an amount in excess of the $25,000 monetary limit in s. 19(1.1) for appeals filed before October 1, 2007. The trial judge found that the plaintiffs had established the defendants’ liability but failed to prove any damages. On appeal, the Divisional Court found (at para. 4) that it did not have jurisdiction under the equivalent of s. 19(1.2)(c), given that the plaintiffs’ initial claim exceeded the monetary limit. The court also found (at paras. 4-7) that the equivalent of s. 19(1.2)(d) did not apply to provide jurisdiction to the Divisional Court. The court reasoned that while the amount claimed exceeded the monetary limit, the second branch of that provision (requiring that the trier of fact indicate that the award would have been less than the monetary limit if the claim had been allowed) was not satisfied. The court also noted (at para. 5) that the latter requirement could not be satisfied “where the claim is dismissed because damages have not been proven” (emphasis in original).
[20] In the appeal before the court, as in Sherman, s. 19(1.2)(c) does not apply since the plaintiff’s initial claim exceeded the applicable monetary limit. Section 19(1.2)(d) does not apply since the trier of fact made no determination (nor was it asked a question) as to the amount it would have awarded if the claim had been allowed. That result is consistent with the Court of Appeal’s decision in Hearn (relying on the decision of this court in Mars), which confirmed that where damages are indeterminate and the claim is for more than $50,000, the Divisional Court does not have jurisdiction to hear the appeal under s. 19(1.2)(d). Contrary to the plaintiff’s position, I see nothing in Harte-Eichmanis to indicate that the Divisional Court has jurisdiction under either of ss. 19(1.2)(c) or (d).
[21] One of the substantive issues in this appeal is whether the trial judge erred in law by refusing to include in the judgment an award of nominal damages (one dollar) to the plaintiff for battery. The plaintiff argues that given the jury’s finding that Mr. Hinder punched the plaintiff, the trial judge should have done so had he properly applied the legal principles relating to the tort of battery set out by the Supreme Court of Canada in Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24 (CanLII), [2000] 1 S.C.R. 551. That reasoning supports the conclusion that the Divisional Court has jurisdiction over this appeal under s. 19(1.2)(d), according to the plaintiff.
[22] I do not agree. In response to the jury questions the parties agreed on, the jury found that the plaintiff was not entitled to damages in any amount, which is reflected in the judgment. In these circumstances, to conclude that the plaintiff would have been entitled to nominal damages of one dollar in order to establish jurisdiction for the Divisional Court to hear this appeal under s. 19(1.2)(d) would be an error in principle.
[23] Accordingly, pursuant to s. 6(1)(b) of the Courts of Justice Act, the appeal in this case lies to the Court of Appeal, and not the Divisional Court.
|
