Divisional Court jurisdiction

The appeal jurisdiction of the Divisional Court in civil matters remains problematic.

Today's important Court of Appeal decision in Canady v. Tucci, 2009 ONCA 554 clarifies the law and says all plaintiffs claims (dismissed or allowed) must be added together to see if the Divisional Court limit is met or exceeded.

The Court writes:

[16]          All of the plaintiffs' claims that are the subject of the dismissal must be added together to determine the total assessed amount of the dismissed claim for the purpose of applying ss. 19(1)(a)(1.1)(c) or 19(1)(a)(1.1.)(d). This rule applies not only to individualized claims by a single plaintiff for different heads of damages, but to the claims of the separate plaintiffs in one action. Once the amount of either the judgment, or where the claims were dismissed, the dismissed claims, and the amount assessed by the trial judge, is determined, then reference is made to section 19(1)(a) to determine if jurisdiction lies with the Divisional Court.

[17]          I say, with respect to the Divisional Court, the decisions of this court in McManus v. Feldman Investments Ltd., [2003] O.J. No. 5762 and Sepe v. Monteleone (2006), 78 O.R. (3d) 676 are consistent with each other and with these reasons.

[18]          In McManus, the total amount of the judgment was $148,143 in favour of the plaintiff.  Of that sum, the appeal was only in relation to the punitive damages which were assessed at $16,750.00.  However, the appeal lay to this court because the amount of the judgment was  in excess of $25,000. In McManus, the court quoted from the decision of Catzman J.A. in McGrath v. Woodrow (2001) 52 O.R. (3d) 732 where he explained:

The pivotal concept in subclause 19(1)(a)(i) is the amount of the judgment. It is not the amount claimed in the action or counterclaim. It is not the amount "involved" in the appeal or "in issue" in the appeal. Jurisdiction under subclause 19(1)(a)(i) turns on the amount of the payment ordered by the judgment sought to be appealed.

[19]          In Sepe, the plaintiff bricklayer sued for the sum of $18,000.00 for brickwork he had completed for the defendant homeowners.

[20]          The homeowners counterclaimed for damages in the sum of $20,000 for shoddy work and in addition claimed the sum of $3387.49 by way of set-off.  The homeowners conceded the value of the plaintiff's work to be $12,146.06.

[21]          The trial judge dismissed both the appellant plaintiff's claim and the homeowners' claim for set-off. She awarded the homeowners $19,260 on their counterclaim. The appellant plaintiff appealed the dismissal of his claim and the award of judgment on the defendant respondents' counterclaim.

[22]          To determine jurisdiction, again reference was to s. 19(1)(a)(1.1) of the Act.  As this court explained in Sepe, because the four subparagraphs that deal with jurisdiction are disjunctive each subparagraph is considered separately for the purpose of determining jurisdiction. The dismissal of the appellant Sepe's claim fell within 19(1)(a)(1.1)(c) – dismissal of a claim that is for an amount not more than $25,000.00; he had claimed $18,000.00.  As for the counterclaim of the respondent defendants, the trial judge had awarded the sum of $19,260.00 – again a judgment sum for an amount less than $25,000.00, under 19(1)(a)(1.1)(a).  Accordingly there was no amount over $25,000.00 and the appeal lay to the Divisional Court.[2]

[23]          The judgment records the claims allowed and the claims that have been dismissed and is the key document to which reference must be made in determining the applicability or not of s. 19 of the Act. The subsections of s. 19 are, as this court noted in Sepe, disjunctive and they must be read and interpreted in that way. However, within each subsection, all of the claims whether allowed or dismissed and whether claimed by one party or more than one party are to be added together in order to apply s. 19(1)(a).
James Morton
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