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Simon Shields, LLB

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Appeals - Divisional Court - Monetary Limit

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.
Note:
Not having seen the pleadings here, I suppose it's possible that the plaintiff sought a declaration with respect to the easement 'one way or the other please', but what the Court of Appeal is treating as a declaration here seems functionally indistinguishable from a simple dismissal of a 'positive' easement declaration claim. As such the fact that a declaration was involved here is entirely one of form, rather than substance. That is, if the court had simply refused the declaration claim (with the same legal effect) then it appears that the appeal would properly have been brought before the Divisional Court, since the 'final order' would have been entirely monetary in nature.

Further, isn't 'dismissal' (or reduction) of a plaintiff's excessive (and over $50,000) monetary claim similarly one element of a judicial Order subject of review?

In my view the proper 'yardstick' by which the appeal route should be determined is defined by the original remedies sought in the Claim, since even dismissals of such claims are the true substance of any plaintiff's appeal seeking to 'get what they originally sought' (thus dispensing with the arbitrary formalism identified above). Further, where counter-claims and cross-claims exist, they should be assessed in arithmetic totality to determine which court has jurisdiction, as all of them are subject to appeal.


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