Anyone who has taken the bar exam can likely recite for you the appellate jurisdiction of the Divisional Court versus the Ontario Court of Appeal. Despite the apparent simplicity of these rules, however, they can be confounding in practice.
Section 19 of the Courts of Justice Act, RSO 1990, c. C.43 sets out the jurisdiction of the Divisional Court:
19. (1) An appeal lies to the Divisional Court from,
(a) a final order of a judge of the Superior Court of Justice, as described in subsections (1.1) and (1.2);
(b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court;
(c) a final order of a master or case management master.
A final order is one that ultimately disposes of a party’s rights. This means, for example, that a dismissal of a summary judgment motion is an interlocutory order, while the granting of summary judgment is final. The tricky issues that can arise here are properly a subject of their own blog post, but for now I merely note that the distinction between “final” and “interlocutory” is often a source of debate.
The difficulty I want to focus on here arises from perhaps the most seemingly straightforward aspect of s. 19, which is the “$50,000 Rule,” contained in s. 19(1.2). This section establishes a monetary threshold, below which the Division Court has jurisdiction. The $50,000 Rule provides that the Divisional Court has jurisdiction over appeals from final orders
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 out 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)
This purely mathematical exercise looks straightforward: more than $50,000, and an appeal lies to the Court of Appeal. Less, and it is to Divisional Court. In reality, however, it can be difficult to determine if the amount in issue is above or below this threshold. A few recent cases from the Ontario Court of Appeal and Divisional Court demonstrate the difficulty of this rule, and provide the following principles to keep in mind:
First, the sections are disjunctive. An appeal can still lie to the Divisional Court if the periodic payments plus the single payment add up to more than $50,000 (for example, a lump sum payment of $30,000 as an equalization payment, and periodic payments of spousal support totally $40,000 annually). One of either the periodic or the one-time payments, or the dismissed claims, must be over $50,000 to remove the appeal from the jurisdiction of the Divisional Court.
This rule was established by the Court of Appeal in Sepe v. Monteleone (2006), 78 OR (3d) 676, in which the appellant appealed both the dismissal of his claim and the award of judgment on defendants’ counterclaim. Both claims were under the threshold, but the appellant brought his appeal to the Court of Appeal, since the total of the two claims together was over the threshold. The Court of Appeal found he should have been at Divisional Court.
Second, while each of the four sub-paragraphs is to be read disjunctively, all claims that fall within one subparagraph must be added together for the purpose of establishing whether the $50,000 threshold is met. For example, in the case of Mohammed (Personal Representative of) v. Tucci (2009), 97 O.R. (3d) 145 (C.A.), the trial judge had awarded $15,000 to each of two separate plaintiffs. (The applicable monetary threshold was at that time $25,000 rather than $50,000). An appeal from that decision was properly to the Court of Appeal.
Third, it is the amount of the award, not the amount under appeal, which determines jurisdiction. In Bryce v. Bryce, [2015] O.J. No. 3149, 2015 ONSC 3795 (Div. Ct.), the amount of child and spousal support ordered at trial totalled $82,448 in periodic payments over 12 months, but that included both spousal and child support. The appellant in that case only appealed the spousal support portion of order, which portion was under the $50,000 threshold, and she therefore brought her appeal to the Divisional Court. The Divisional Court found it lacked jurisdiction: the aggregate of periodic payments awarded at trial determines jurisdiction, not the amount under appeal.
Fourth, where a claim is dismissed – s.19(1.2)(c) or (d) – if the amount of a claim is not determined or is assessed at less than $50,000, jurisdiction lies with the Divisional Court. The Court of Appeal recently established that this might include claims that are implicitly dismissed. In Sandu v. Fairmont Hotels Inc., 2015 ONCA 611, the Court of Appeal considered an appeal from a judgment in which the trial judge dismissed the plaintiff’s defamation claim, but stated that had she found there was defamation, she would have assessed the damages at $25,000. Although the overall claim for damages was more than $25,000, the trial judge’s assessment brought the appeal within the jurisdiction of the Divisional Court. However, the respondent argued that the Court of Appeal had jurisdiction over the appeal because the trial judge’s award would have been for general damages only, and therefore the trial judge did not turn her mind to what the appropriate award would have been for aggravated and punitive damages (the amounts claimed for which must have been over $50,000, to make this a viable argument). The Court of Appeal disagreed and found that, as a matter of fact, the trial judge had assessed damages globally. The appeal was transferred to Divisional Court.
While the holding in Sandu seemed to turn more on the interpretation of the reasons of that particular trial judge than on any overarching principle, it is likely that in any case where a trial judge provides a general value, in the alternative, for a dismissed claim, and does not specifically address punitive or aggravated damages, the same reasoning will apply.
These rules turn what initially looked like simple math into a far more complex inquiry. Nevertheless, they are worth keeping in mind in order to avoid a far more unpleasant mathematical exercise: adding up the cost and wasted time of finding oneself with an appeal in the wrong court.
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Written by: WEL Partners
Posted on: November 5, 2015
Categories: Commentary
Anyone who has taken the bar exam can likely recite for you the appellate jurisdiction of the Divisional Court versus the Ontario Court of Appeal. Despite the apparent simplicity of these rules, however, they can be confounding in practice.
Section 19 of the Courts of Justice Act, RSO 1990, c. C.43 sets out the jurisdiction of the Divisional Court:
19. (1) An appeal lies to the Divisional Court from,
(a) a final order of a judge of the Superior Court of Justice, as described in subsections (1.1) and (1.2);
(b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court;
(c) a final order of a master or case management master.
A final order is one that ultimately disposes of a party’s rights. This means, for example, that a dismissal of a summary judgment motion is an interlocutory order, while the granting of summary judgment is final. The tricky issues that can arise here are properly a subject of their own blog post, but for now I merely note that the distinction between “final” and “interlocutory” is often a source of debate.
The difficulty I want to focus on here arises from perhaps the most seemingly straightforward aspect of s. 19, which is the “$50,000 Rule,” contained in s. 19(1.2). This section establishes a monetary threshold, below which the Division Court has jurisdiction. The $50,000 Rule provides that the Divisional Court has jurisdiction over appeals from final orders
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 out 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)
This purely mathematical exercise looks straightforward: more than $50,000, and an appeal lies to the Court of Appeal. Less, and it is to Divisional Court. In reality, however, it can be difficult to determine if the amount in issue is above or below this threshold. A few recent cases from the Ontario Court of Appeal and Divisional Court demonstrate the difficulty of this rule, and provide the following principles to keep in mind:
First, the sections are disjunctive. An appeal can still lie to the Divisional Court if the periodic payments plus the single payment add up to more than $50,000 (for example, a lump sum payment of $30,000 as an equalization payment, and periodic payments of spousal support totally $40,000 annually). One of either the periodic or the one-time payments, or the dismissed claims, must be over $50,000 to remove the appeal from the jurisdiction of the Divisional Court.
This rule was established by the Court of Appeal in Sepe v. Monteleone (2006), 78 OR (3d) 676, in which the appellant appealed both the dismissal of his claim and the award of judgment on defendants’ counterclaim. Both claims were under the threshold, but the appellant brought his appeal to the Court of Appeal, since the total of the two claims together was over the threshold. The Court of Appeal found he should have been at Divisional Court.
Second, while each of the four sub-paragraphs is to be read disjunctively, all claims that fall within one subparagraph must be added together for the purpose of establishing whether the $50,000 threshold is met. For example, in the case of Mohammed (Personal Representative of) v. Tucci (2009), 97 O.R. (3d) 145 (C.A.), the trial judge had awarded $15,000 to each of two separate plaintiffs. (The applicable monetary threshold was at that time $25,000 rather than $50,000). An appeal from that decision was properly to the Court of Appeal.
Third, it is the amount of the award, not the amount under appeal, which determines jurisdiction. In Bryce v. Bryce, [2015] O.J. No. 3149, 2015 ONSC 3795 (Div. Ct.), the amount of child and spousal support ordered at trial totalled $82,448 in periodic payments over 12 months, but that included both spousal and child support. The appellant in that case only appealed the spousal support portion of order, which portion was under the $50,000 threshold, and she therefore brought her appeal to the Divisional Court. The Divisional Court found it lacked jurisdiction: the aggregate of periodic payments awarded at trial determines jurisdiction, not the amount under appeal.
Fourth, where a claim is dismissed – s.19(1.2)(c) or (d) – if the amount of a claim is not determined or is assessed at less than $50,000, jurisdiction lies with the Divisional Court. The Court of Appeal recently established that this might include claims that are implicitly dismissed. In Sandu v. Fairmont Hotels Inc., 2015 ONCA 611, the Court of Appeal considered an appeal from a judgment in which the trial judge dismissed the plaintiff’s defamation claim, but stated that had she found there was defamation, she would have assessed the damages at $25,000. Although the overall claim for damages was more than $25,000, the trial judge’s assessment brought the appeal within the jurisdiction of the Divisional Court. However, the respondent argued that the Court of Appeal had jurisdiction over the appeal because the trial judge’s award would have been for general damages only, and therefore the trial judge did not turn her mind to what the appropriate award would have been for aggravated and punitive damages (the amounts claimed for which must have been over $50,000, to make this a viable argument). The Court of Appeal disagreed and found that, as a matter of fact, the trial judge had assessed damages globally. The appeal was transferred to Divisional Court.
While the holding in Sandu seemed to turn more on the interpretation of the reasons of that particular trial judge than on any overarching principle, it is likely that in any case where a trial judge provides a general value, in the alternative, for a dismissed claim, and does not specifically address punitive or aggravated damages, the same reasoning will apply.
These rules turn what initially looked like simple math into a far more complex inquiry. Nevertheless, they are worth keeping in mind in order to avoid a far more unpleasant mathematical exercise: adding up the cost and wasted time of finding oneself with an appeal in the wrong court.
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