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Appeals - The $50k Dividing Line [CJA 19]. Powell v. Ledroit Sabo Litigation
In Powell v. Ledroit Sabo Litigation (Ont CA, 2026) the Ontario Court of Appeal granted a motion to quash an appeal, here concerning "the determination of the correct appeal route from the Superior Court for a final order for a single payment in respect of a solicitor and client costs assessment".
Here the court considers the appeal route for "a single payment in respect of a solicitor and client costs assessment":b. Appeal route from a final order for a single payment by a judge of the Superior Court of Justice
[10] The appeal route for appeals from a final order of a single judge of the Superior Court for a single payment in solicitor and client assessment proceedings is determined by ss. 6(1) and 19(1)(a) of the CJA.
[11] For the purposes of this motion to quash, the relevant provision of s. 6(1) of the CJA is s. 6(1)(b), which stipulates that an appeal lies to the Court of Appeal from,a final order of a judge of the Superior Court of Justice, except
(i) an order referred to in clause 19(1)(a) [of the CJA]; [12] Section 19(1)(a) of the CJA reads as follows:An appeal lies to the Divisional Court from,
a final order of a judge of the Superior Court of Justice, as described in subsection[] …(1.2); [13] Section 19(1.2)(a) provides the following:If the notice of appeal is filed on or after October 1, 2007, clause (1)(a) applies in respect of a final order,
for a single payment of not more than $50,000 exclusive of costs; [14] Stated simply, for the purposes of this motion, an appeal will lie to the Court of Appeal if the order under appeal is a final order of a judge of the Superior Court unless it is for a single payment of not more than $50,000 exclusive of costs.
[15] There is no dispute that for the purpose of determining the correct appeal route in this case, we are dealing with the final order of a judge of the Superior Court, resulting in a single payment of money. As such, the next step in the analysis must determine whether the final order falls under the exceptions stipulated in s. 19(1)(a) and (1.2)(a). Specifically, whether the amount of the single payment is:(i) $50,000 or less, exclusive of costs, in which case the appeal lies to the Divisional Court under s. 19(1)(a) and (1.2)(a); or
(ii) greater than $50,000, exclusive of costs, in which case the appeal lies to the Court of Appeal under s. 6(1)(b). [16] It is important to emphasize that the circumstances in this case concern only the question of the appeal from a final order of a Superior Court judge for a single payment. Accordingly, it is only the specific provisions under ss. 6(1)(b)(i) and 19(1)(a) and (1.2)(a) of the CJA that are relevant for the analysis. However, as I highlight in some of the cases referenced below, where the Superior Court judge’s final order includes other provisions of a final nature in addition to a single payment, such that the appeal route lies to the Court of Appeal.
c. Principles applied
[17] How do these appeal provisions apply to an assessment of costs?
[18] Where a party contests an assessment certificate, the final order of the judge dismisses or allows the opposing party’s motion and confirms or alters the assessment certificate. In other words, the final order of the Superior Court judge confirms the correct amount of the solicitor’s account and what amounts may remain payable to the solicitor or repayable to the client, as the case may be. It is therefore the final order of the Superior Court that determines the amount of the single payment for the purposes of the appeal route.
[19] The final order of the Superior Court judge can cause three outcomes:(1) The single payment of money by the clients to the solicitors. For example, the assessment officer reduces the solicitors’ unpaid account of $100,000 to $25,000. The final order of a judge of the Superior Court confirms the assessment certificate without alteration and dismisses the objection motion. The effect of the final order is to confirm that $25,000 is the correct amount of the solicitors’ account and is payable by the clients. The appeal of that order for a single payment lies to the Divisional Court. If, conversely, the judge grants the objection motion and increases the amount payable by the clients to an amount greater than $50,000, say $75,000, the appeal lies to the Court of Appeal because the single payment confirmed to be payable is greater than $50,000.
(2) The single payment of money by the solicitors to the clients, as a refund for monies overpaid by the clients. For example, the assessment officer assesses the solicitors’ accounts, which the clients have already paid, at $100,000. The final order of a judge of the Superior Court reduces that amount to $50,000. This results in the order for a single payment to the clients of $50,000. The appeal lies to the Divisional Court. If, on the other hand, the assessed amount is reduced by $40,000 by the final order of a judge of the Superior Court, this results in the order of a single payment of $60,000 to the clients. The appeal then lies to the Court of Appeal.
(3) The payment of no further monies, where the clients have already paid the amount as confirmed or determined by the motion judge. For example, the assessed amount already paid by the clients is $50,000. The final order of a judge of the Superior Court confirms the $50,000 amount without any alteration. The final order is effectively an order for $0, and the appeal lies to the Divisional Court. To the same result, if the assessed amount already paid by the clients is $100,000 and the final order of the Superior Court confirms that amount without alteration, the final order is effectively an order for $0 and the appeal still lies to the Divisional Court. [20] This approach to the determination of the appeal route for an assessment appeal provides clarity because it coincides with the determination of the appeal route in any civil proceeding where the appeal is from a final order of a judge of the Superior Court for a single payment. Where the order under appeal amounts to a single payment or where damages claimed have been assessed at zero dollars, it is typically the amount ordered to be paid rather than the amount claimed that is determinative of the appeal route: Chavdarova v. The Staffing Exchange Inc., 2018 ONCA 744, at para. 1; Saleh v. Nebel, 2016 ONCA 948, at para. 5; Sandu v. Fairmont Hotels Inc., 2015 ONCA 611, at para. 4; Harte-Eichmanis v. Fernandes, 2012 ONCA 266, 15 R.F.L. (7th), at paras. 14 and 16. As this court clarified in McGrath v. Woodrow (2001), 2001 CanLII 24163 (ON CA), 52 O.R. (3d) 732 (C.A.), at para. 16:The pivotal concept in subclause [19(1)(a) and 19(1.2)(a)] 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)] turns on the amount of the payment ordered by the judgment sought to be appealed. [21] The responding parties rely on Newell v. Sax, 2019 ONCA 455, 43 C.P.C. (8th) 217, in support of their argument that the appeal route should be determined by the difference between the original amount of the solicitor’s accounts and the assessed amount as confirmed by the motion judge. I am not persuaded that Newell supports that argument. First, as noted above in the passage from McGrath, it is not the amount in issue on the appeal that determines the appeal route, but the amount of payment ordered. Second, Newell involved a reduction of the assessment certificate by a judge of the Superior Court from $149,635.52 to $26,375. The client had already paid the solicitor a total of $187,044.40 in respect of the account. As a result, the final order by the judge of the Superior Court amounted to an order for the solicitor to refund the client $160,669.40. In other words, this was a final order for a single payment of $160,669.40. This order exceeded the monetary jurisdiction of the Divisional Court, and the appeal lay properly to this court.
[22] While there are a few outlier decisions that do not address appellate jurisdiction,[1] the jurisprudence from this court is generally consistent with this approach to the appeal route. For example, in Evans, Sweeny Bordin LLP v. Zawadski, 2015 ONCA 756, 127 O.R. (3d) 510, the assessment officer reduced the solicitors’ accounts of approximately $800,000 (which included a $500,000 bonus) to $268,354.13. The motion judge of the Superior Court allowed the $500,000 bonus. The clients had already paid $4,691.86. As the single payment ordered was for more than $50,000, the appeal lay properly to this court.
[23] Similarly, in Ares Law Professional Corporation v. Rock, 2017 ONCA 569, this court heard an appeal from a motion judge’s order confirming a certificate of assessment and ordering judgment in the amount of $125,602.83 in favour of the solicitors. In that case, the original amount of the solicitors’ account was $139,302.52, but the assessment officer made some small adjustments and ultimately assessed the outstanding amount at $125,602.83. The motion judge confirmed this amount. The single payment ordered was therefore for more than $50,000 and the appeal lay to this court.
[24] At first glance, Bales Beall LLP v. Fingrut, 2013 ONCA 266, appears to be inconsistent with the approach set out above. In that case, the solicitors’ account of $224,757.28 was reduced to $101,111 on assessment. The motion judge confirmed that the solicitors’ account was $202,822.28. As the client had already paid $190,000, the client owed the solicitors $12,822.28. Importantly, however, the motion judge also determined that the assessment officer exceeded her jurisdiction in interpreting the parties’ contingency fee agreement. The appeal from the final order was heard and dismissed by this court. This court did not address the issue of jurisdiction. However, the final order of the motion judge was not solely for a single payment but also determined the issue of the validity of the parties’ contingency agreement. The appeal therefore lay to this court under s. 6(1)(b).
[25] Raphael Partners v. Lam (2002), 2002 CanLII 45078 (ON CA), 61 O.R. (3d) 417 (C.A.), was similarly properly before this court because the final order of the motion judge did more than simply determine the correct amount of the solicitors’ account. Although jurisdiction was also not canvassed in that case, the motion judge had declined to enforce a fee arrangement after she concluded it was unreasonable. As her order was not solely for a single payment, the appeal lay to this court.
[26] Charleston Partners v. Dickinson, [1996] O.J. No. 1552 (C.A.), is another case that seems to be an outlier because the court entertained an appeal from an order in which costs were assessed at $8,774. In that case, however, the appeal was properly brought before this court under s. 6(1)(c) of the Courts of Justice Act, which provides that an appeal lies to the Court of Appeal from “a certificate of assessment of costs issued in a proceeding in the Court of Appeal”. As the appellant was appealing a certificate issued in proceedings in this court, s. 6(1)(c) applied and her appeal lay to this court.
[27] Consistent with the approach I have set out above, the Divisional Court generally appears to have looked to the amount payable to determine jurisdiction to hear appeals, in cases resulting in payments by both solicitors and clients. For example:(1) In Cao v. Monkhouse Law Professional Corp., 2021 ONSC 7894 (Div. Ct.), leave to appeal to Ont. C.A. refused, M53416 (December 19, 2022), the client appealed from a motion judge’s assessment of the solicitors’ account on a motion to oppose confirmation of the assessment report. The account was originally submitted in the amount of $93,108.30, of which $395.50 had been paid. The assessment officer reduced the account to $60,191. The motion judge further reduced the solicitors’ account, fixing it at $45,000. The Divisional Court held at para. 5 of its reasons that it had jurisdiction to hear the appeal pursuant to s. 19(1.2) of the CJA, “since the order is a final order in a civil proceeding where the monetary award is less than $50,000”.
(2) In Schwisberg v. Kennedy, [2006] O.J. No. 1224 (Div. Ct.), the solicitors had withdrawn $50,000 from trust funds to pay their $60,954.22 account. The client sought an assessment of the solicitors’ account, which was reduced to $43,935.92, leaving $6,291.44 due to the clients. The court noted that the solicitors had appealed under s. 19(1)(a)(i) of the Courts of Justice Act.
(3) In RZCD Law Firm LLP v. Williams, 2016 ONSC 2122, 348 O.A.C. 89 (Div. Ct.), leave to appeal to Ont. C.A. refused, M46390 (July 8, 2016), the Divisional Court heard an appeal where the assessment officer ordered a $24,000 refund on an $89,000 bill, and the motion judge reduced the assessment certificate and set a refund of $11,711.83.
(4) In 1395804 Ontario Ltd. (Blacklock’s Reporter) v. Hameed, 2024 ONSC 2797 (Div. Ct.), the Divisional Court heard an appeal of an order of the motion judge affirming the assessment officer’s assessment of $45,000.00, reduced from an original unpaid account of $83,581.63.
(5) In Nakano v. Cohen Highley LLP, 2025 ONSC 3147 (Div. Ct.), leave to appeal to Ont. C.A. granted, COA-25-OM-0255 (January 16, 2025), the Divisional Court heard an appeal from a motion judge’s order affirming fees of $80,000, reduced from $110,164.81. As the client had already paid the solicitor $102,343.10, the amount to be refunded to the client fell within the Divisional Court’s jurisdiction. [28] On initial view, Speciale Law Professional Corporation v. Shrader Canada Limited, 2017 ONSC 3613 (Div. Ct.), leave to appeal to Ont. C.A. refused, M48104 (January 19, 2018), appears inconsistent with the approach I have discussed, but a closer examination of the case confirms the Divisional Court rightly exercised jurisdiction in that case. In Speciale, the client sought an assessment of the solicitor’s accounts totalling more than $1 million, all of which were paid. The assessment officer reduced the accounts to $325,789.01, but the motion judge refused to confirm the assessment officer’s report and certificate and referred the assessment for a new hearing before another assessment officer. The client appealed, with leave, to the Divisional Court. As the motion judge’s order appears to have been characterized as an interlocutory order, the Divisional Court correctly assumed jurisdiction in that case: see Singh v. Heft, 2022 ONCA 135, at para. 14.
[29] In summary, in assessment proceedings, it is the amount of the single payment ordered on review by a single judge of the Superior Court that governs the appropriate appeal route. Stated otherwise, jurisdiction depends on the amount that remains payable to the solicitor or repayable to the client after accounting for any payments already made. . Farid v. Brunt
In Farid v. Brunt (Ont CA, 2025) the Ontario Court of Appeal quashed an appeal, here in the course of deciding a motion for directions "on whether this court has jurisdiction to hear this appeal":[2] The trial judge dismissed the appellants’ solicitor’s negligence action. The trial judge assessed the damages to which the appellants would have been entitled, had their claim been upheld. She would have awarded them $1,400, as opposed to the amount of approximately $4.8 million they claimed.
[3] Pursuant to s. 19(1.2)(d) of the Courts of Justice Act, R.S.O. 1990, c. C.43, the Divisional Court has jurisdiction to hear the appeal because it concerns an order that dismissed a claim for an amount more than $50,000, in respect of which the trial judge indicated, in her reasons, that if the claim had been allowed, the amount awarded would have been not more than $50,000: Sandu v. Fairmont Hotels Inc., 2015 ONCA 611, at para. 4; Saleh v. Nebel, 2016 ONCA 948, at paras. 4-5. The trial judge was not required to include her damages assessment in her order for s. 19(1.2)(d) to apply.
....
[6] We appreciate that the appellants consider that this appeal raises important legal issues affecting a significant number of Canadians. But that does not justify bypassing the statutory jurisdiction that the Ontario legislature has given to the Divisional Court. Doing so would deprive this court of the judgment that the Divisional Court would provide, should the matter be appealed further: Tomec, at para. 16. . Kou v. Karmah
In Kou v. Karmah (Ont Div Ct, 2025) the Ontario Divisional Court allowed an appeal, here from an MVA lawsuit "splitting liability for the collision between the respondent (65%) and the appellants (35%)", this where the "parties reached an agreement on damages and proceeded to a summary trial under the simplified procedure on the issue of liability only".
Here the court notes the Divisional Court's monetary appeal jurisdiction:[8] The Divisional Court has jurisdiction to hear the appeal of a final order of a judge of the Superior Court in particular circumstances, including when the final order involves payment of less than $50,000, exclusive of costs: Courts of Justice Act, R.S.O. 1990, c C.43, ss. 19(1)(a) and 19(1.2)(a). . Babadi v. Guelph Police Services et al
In Babadi v. Guelph Police Services et al (Ont Divisional Ct, 2025) the Divisional Court considered a motion to quash an appeal, here where the appeal route was in question:Does the Divisional Court’s Jurisdiction?
[10] No. This appeal ought to have been brought to the Court of Appeal.
[11] Under s. 19(1) and (1.2)(c) of the Courts of Justice Act, the appellate jurisdiction of this Court is triggered not by the nature of the appeal being pursued (as the Appellant argues), but by the nature and of underlying claim and the amount claimed in it. Under s. 19(1)(a), where the appeal is from a Superior Cour Judge as described in subsections (1.1) or (1.2), the appeal is to the Divisional Court. Subsection (1.2) (c) provides that where the Notice of Appeal is filed after 7 October 2007, the appeal to the Divisional Court is from only from orders dismissing claims for amounts not exceeding $50,000.00 in total. In other words, it is the amount claimed in the action that determines the appeal route where the appeal is from a final order such as this. Even where the damages are indeterminate, so long as the Statement of Claim claims damages over $50,000.00, the Divisional Court does not have jurisdiction (see: Pullano v. Hinder, 2021 ONSC 4714 at Paragraph 13). . Alessandro v. Briggs
In Alessandro v. Briggs (Div Court, 2024) the Divisional Court noted that pre-judgment interest is included for determining the $50k CJA s.19 appeal route:[1] The Divisional Court only has jurisdiction to hear appeals from a final order of a judge of the Superior Court of Justice if the order is for single payment of not more than $50,000 (exclusive of costs): Courts of Justice Act, ss. 19(1) and 19(1.2). Appeals from final orders for the payment of more than $50,000 must go to the Court of Appeal.
[2] On August 21, 2024, Justice Parghi granted default judgment against Mr. Alessandro in favour of Mr. Briggs. Justice Parghi ordered Mr. Alessandro to pay $20,285 in compensatory damages and $25,000 in punitive damages plus 1.3% pre-judgment interest from January 28, 2015.
[3] The Court of Appeal has ruled that pre-judgment interest is included in the total for the purpose of determining the jurisdiction of the Divisional Court: Medis Health and Pharmaceutical Services v. Belrose, 1994 CanLII 413 (ON CA).
[4] Based on the calculations provided in the Respondent’s case conference brief, I am satisfied that Justice Parghi has ordered Mr. Alessandro to make a single payment to Mr. Briggs of $50,918.83 once the pre-judgment interest is calculated.
[5] The Divisional Court does not have jurisdiction to hear Mr. Alessandro’s appeal. His appeal is, therefore, dismissed. I make these directions without prejudice to Mr. Alessandro’s ability to pursue his appeal in the proper forum. . Swan v. Firearms Safety Education Service of Ontario
In Swan v. Firearms Safety Education Service of Ontario (Ont CA, 2024) the Ontario Court of Appeal dismissed a costs appeal, here with an interesting costs appeal route issue [under CJA 19(1.2)(a)]:[5] The only issue before us is the appellant’s appeal of the costs awarded against him. Given that the cumulative costs award falls below the $50,000 threshold in s. 19(1.2)(a) of the Courts of Justice Act, R.S.O. 1990, C. C.43, we do not have jurisdiction to hear this appeal. Although the monetary limit in s. 19(1.2)(a) is set “exclusive of costs”, the limit applies to costs when the costs order is the subject of the appeal: Mullin v. Lagace, 2015 ONCA 757, at para. 13. Accordingly, the appeal is dismissed. The costs of this appeal are payable by the appellant to the respondent, His Majesty the King, in the all-inclusive sum of $8,000 and to the respondents, the FSESO, Cindy Baldree, Doug Marshall and Don Bell, in the all-inclusive sum of $8,000. . 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.
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