The route an appeal takes depends critically on the nature of the order appealed. So appeals may, or may not, go to Divisional Court depending on whether they are for specific payments of money. What is an order would go to the Court of Appeal if the order was appealed in full but the parts appealed would, standing alone, go to Divisional Court?
Hanisch v. McKean, 2014 ONCA 698 holds the entire order, not just the passages appealed, determines the appeal route:
[19] The specific question raised by the respondent concerns the meaning of "final order" as it appears in ss. 6 and 19 of the CJA. If "final order" can properly be read as referring to the particular term(s) of a final order that is/are under appeal, then the respondent is correct and this appeal lies to the Divisional Court.
[20] However, if "final order" must be read as meaning the entire final order, irrespective of what portions of the final order are under appeal, then the respondent is incorrect and this court has jurisdiction to entertain this appeal.
[21] I note at the outset that, when determining this court's jurisdiction over orders having both final and interlocutory aspects, this court has generally distinguished between the final and interlocutory aspects of the order: see, for example, Albert v. Spiegel (1993), 17 C.P.C. (3d) 90; Cole v. Hamilton (City) (2002), 60 O.R. (3d) 284. However, this distinction is required by s. 6(1)(b) of the CJA, which limits the appellate jurisdiction of the Court of Appeal to final orders.
[22] In my view, two factors point strongly to the conclusion that "final order," as it appears in ss. 6 and 19 of the CJA, must be read as meaning the entire final order, irrespective of what portions of the final order are under appeal.
[23] First, in Sepe v. Monteleone(2006), 78 O.R. (3d) 676, at para. 6, this court described the purpose of section 19(1)(a) of the CJA as being "to define an easily applied cut-off line for litigants to determine the proper appeal route in any particular case." Examining the overall scheme of ss. 6 and 19 of the CJA in the light of this purpose of s. 19, interpreting "final order" as meaning anything other the whole of the final order would not make sense.
[24] When ss. 6(1), 6(2) and 19 are read in combination, it is apparent that the scheme of these sections is to give the Court of Appeal default jurisdiction over appeals from final orders of the Superior Court of Justice – subject only to the exceptions created by s. 19 of the CJA and other specific statutory provisions. Section 6(2) underlines the intention to give the Court of Appeal default jurisdiction by providing that, where more than one court has jurisdiction over appeals in the same proceeding, the Court of Appeal may assume jurisdiction over all appeals.
[25] Considered in the context of this statutory scheme, it would not make sense to interpret "final order" as meaning anything other than the whole of the final order.
[26] For example, in the context of an order made in matrimonial proceedings, if "final order" were interpreted as including the particular term(s) of an order that is/are under appeal, one spouse could be required to appeal the support award to the Divisional Court, whereas the other spouse could be required to appeal the equalization payment made under the same order to the Court of Appeal. While it is true that under s. 6(2) of the CJA, the Court of Appeal would have jurisdiction to entertain both appeals once the appeal of the equalization payment was filed, it is unlikely that the legislature intended that appeals would have to be transferred or truncated depending on which party was the first to deliver its notice of appeal.
[27] When read in light of the purpose of s. 19, which is to provide an easily applied cut-off line for litigants to determine the proper appeal route in any particular case, it is my view that "final order" as it appears in ss. 6 and 19 can only sensibly be interpreted as meaning the whole of the final order. Otherwise, the proper appeal route from an order could change, depending on the terms of the order and the grounds of the appeal or cross-appeal.
[28] Second, in applying the four subparagraphs in each of ss. 19(1.1) and (1.2) of the CJA to determine which court has jurisdiction, this court has generally focused on the final order as a whole and not simply the aspect of the order under appeal or the amount claimed on appeal by individual parties. In doing so, this court has made it clear that each of the subparagraphs in ss. 19(1.1) and (1.2) are disjunctive and therefore must be considered separately.[3] However, although claims and counterclaims are not to be combined,[4] when applying each subparagraph, all of the claims (or counterclaims) are to be added together, even if claimed by more than one party,[5] in order to determine which court has jurisdiction. Such an interpretation puts the emphasis on the entire final order and not simply on the aspect of the final order under appeal.
[29] So, for example, in McManus v. Feldman Investments Ltd., [2003] O.J. No. 5762, this court determined that it had jurisdiction over an appeal where the appeal related solely to punitive damages quantified at $16,750, but the total amount of the judgment was $148,143.
[30] Similarly, in Mohammed (Personal Representative of) v. Tucci, 2009 ONCA 554, 97 O.R. (3d) 145, this court held that for the purpose of applying ss. 19(1)(a) and 19(1.1)(c) or (d), the value of all the plaintiffs' claims that were dismissed must be added together to determine the total amount of the dismissed claim. In that case, the plaintiffs sued for damages arising from the death of their infant son, alleging medical malpractice. The trial judge dismissed the action, but assessed the damages for each parent in an amount that fell within the jurisdiction of the Divisional Court. However, when those sums were added together, the total exceeded the jurisdiction of the Divisional Court, giving this court jurisdiction.
[31] Based on the foregoing reasons, I am satisfied that "final order" as it appears in ss. 6 and 19 of the CJA refers to the whole of the final order and I would not give effect to the respondent's preliminary objection concerning jurisdiction.
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