McGrath c.o.b. as Kestrel Cabinetry & Woodworking v. Woodrow et al. Woodrow et al. v. McGrath et al. [Indexed as: McGrath v. Woodrow]
52 O.R. (3d) 732
[2001] O.J. No. 603
Docket No. C32200
Court of Appeal for Ontario
Catzman, Doherty and Simmons JJ.A.
February 23, 2001
Appeals--Jurisdiction--Amount of judgment sought to be appealed less than $25,000--Appeal to Divisional Court even if appellant, cross-appellant, or both, seek to recover on appeal an amount that is more than $25,000--Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1), 19(1).
Civil procedure--Appeals--Jurisdiction--Amount of judgment sought to be appealed less than $25,000--Appeal to Divisional Court even if appellant, cross-appellant, or both, seek to recover on appeal an amount that is more than $25,000--Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1), 19(1).
Plaintiff MM was a home builder, and his wife, plaintiff MM was the nominal owner of the business. The plaintiffs sued the respondents with respect to an agreement to build a house. The plaintiffs claimed $88,421.75 for breach of contract or on the basis of a quantum meruit. The respondents counterclaimed for repayment of an overpayment and for damages for deficiencies in the work. The trial judge assessed the claim at $37,370 and the counterclaim at $40,590.09. The judgment, exclusive of costs, was that the plaintiffs pay the respondents $4,222. The plaintiffs appealed to the Court of Appeal for Ontario.
Held, the appeal should be transferred to the Divisional Court.
Pursuant to ss. 6(1) and 19(1) of the Courts of Justice Act, the Court of Appeal did not have jurisdiction to hear the appeal. An appeal from the final order of a judge of the Superior Court of Justice for a single payment of not more than $25,000, exclusive of costs, is to the Divisional Court. The determinative factor is the amount of the payment ordered by the judgment sought to be appealed, not the amount claimed in the action or counterclaim. If the amount of the judgment is not more than $25,000, the appeal lies to the Divisional Court, even if the appellant, a cross-appellant, or both, seek to recover on appeal an amount that is more than $25,000.
APPEAL from a judgment of MacDougall J. (1998), 40 C.L.R. (2d) 145 (Ont. Gen. Div.) in an action for breach of contract.
Cases referred to Goh v. M.H. Ingle & Associates Insurance Brokers Ltd. (1988), 29 C.P.C. (2d) 276, 31 O.A.C. 79, 1 R.P.R. (2d) 309 (Div. Ct.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1), 19(1)(a)
Wallace A.W. Scott, Q.C., for plaintiff (appellant) and defendents by counterclaim (appellants). Charles M. Campbell and K. Karimjee, for defendants (respondents) and plaintiffs by counterclaim (respondents).
CATZMAN J.A.: --
The issue
1The issue these reasons address is that of jurisdiction.
2To what court does this appeal lie: the Court of Appeal or the Divisional Court?
The Action and the Judgment at Trial
3The plaintiffs, the appellants on this appeal, are husband and wife. The appellant Martin McGrath is a carpenter and woodworker, and the appellant Meryl McGrath is the nominal owner of his business. The defendants, the respondents on the appeal, owned a building lot and engaged the appellant Martin McGrath to construct a custom-built house on that lot. During the course of construction of the house, the parties had a number of disputes and entered into various negotiations and agreements. The appellant Martin McGrath ultimately left the project before it was completed.
4The appellants commenced an action against the respondents, claiming $88,421.75 for breach of contract or, alternatively, on a quantum meruit basis. The respondents counterclaimed for repayment of an overpayment of $7,519 and for damages of $102,558.92 for deficiencies in the work, including items that were uncompleted or required repair.
5The trial judge assessed the appellants' claim on a quantum meruit basis at $36,370 [reported at (1998), 40 C.L.R. (2d) 145 (Ont. Gen. Div.)]. He assessed the respondents' claim for completion and repair costs, deficiency allowance and overpayment at $40,590.09. His reasons then concluded [at p. 172 C.L.R.]:
Accordingly, the Defendants [respondents] will have judgment against the Plaintiff [appellant] Meryl McGrath in the amount of: $40,590.09 - $36,370 = $4,220 [sic].
6Following submissions, he awarded costs to the respondents in the amount of $18,000 plus GST and disbursements.
7The formal judgment reflecting the trial judge's disposition reads as follows:
- THIS COURT ORDERS that Meryl McGrath, carrying on business as Kestrel Cabinetry & Woodworking and Martin McGrath pay to Bruce David Woodrow and Marianne Elizabeth Moershel the sum of $24,717.18, which is the total of the net amount of the recoveries on the claim and counterclaim, being $4,222.00 [sic], the costs of $18,000 awarded to the defendants with reference to both actions and the disbursements attributable to the counterclaim awarded to the defendants and settled in the amount of $2,495.18.
The appeal
8The appellants appealed to this court. Their factum sought an order setting aside the trial judgment and granting judgment in their favour for the sum of $88,421.75 plus interest and costs or, alternatively, for the sum of $36,370 plus interest and costs.
9The respondents did not cross-appeal. Their factum sought an order dismissing the appeal with costs. Their factum further submitted that the appeal lay to the Divisional Court and that this court did not have jurisdiction to entertain it.
10I agree with the respondents' position on jurisdiction.
The Relevant Statutory Provisions
11The jurisdiction of this court is set out in s. 6 of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("the Act") in these terms:
6(1) An appeal lies to the Court of Appeal from,
(a) an order of the Divisional Court, on a question that is not a question of fact alone, with leave of the Court of Appeal as provided in the rules of court;
(b) a final order of a judge of the Superior Court of Justice, except an order referred to in clause 19(1)(a) or an order from which an appeal lies to the Divisional Court under another Act;
(c) a certificate of assessment of costs issued in a proceeding in the Court of Appeal, on an issue in respect of which an objection was served under the rules of court.
12The provision applicable to the present appeal is s. 6(1)(b). The judgment under appeal is a final order of a judge of the Superior Court of Justice, and there is no suggestion that the appeal lies to the Divisional Court under another Act. The question of jurisdiction therefore turns on s. 19(1)(a), to which reference appears in s. 6(1)(b).
13Section 19(1)(a) provides:
19(1) An appeal lies to the Divisional Court from,
(a) a final order of a judge of the Superior Court of Justice,
(i) for a single payment of not more than $25,000, exclusive of costs,
(ii) for periodic payments that amount to not more than $25,000, exclusive of costs, in the twelve months commencing on the date the first payment is due under the order,
(iii) dismissing a claim for an amount that is not more than the amount set out in subclause (i) or (ii), or
(iv) dismissing a claim for an amount that is more than the amount set out in subclause (i) or (ii) 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 subclause (i) or (ii);
14The subclause to be considered in the present case is subclause 19(1)(a)(i). As noted, the judgment under appeal is a final order of a judge of the Superior Court and the appeal is not covered by subclause 19(1)(a)(ii) because the judgment makes no provision for periodic payments, or by either subclause 19(1)(a)(iii) or subclause 19(1)(a)(iv) because the judgment does not dismiss a claim.
15The question, therefore, is whether this appeal is brought from a final order of a judge of the Superior Court of Justice for a single payment of not more than $25,000, exclusive of costs, within the contemplation of s. 6(1)(a) and subclause 19(1)(a)(i) of the Act.
16The 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.
17An earlier version of subclause 19(1)(a)(i) was considered by the Divisional Court in Goh v. M.H. Ingle & Associates Insurance Brokers Ltd. (1988), 31 O.A.C. 79, 29 C.P.C. (2d) 276 (Div. Ct.). In that case, the defendant appealed from a trial judgment awarding the plaintiff $8,400 and interest and costs. The plaintiffs cross-appealed and, in their factum, sought (in addition to the $8,400 they had been awarded at trial) the further sum of $110,000 for damages. The Divisional Court originally felt [at p. 277 C.P.C.] "some concern about [its] jurisdiction in this matter since the cross-appeal put in issue a sum in excess of $25,000" but, upon reflection, concluded that the court had jurisdiction to deal with both the appeal and the cross-appeal. After setting out the statutory provision and noting that the defendant's appeal clearly came within its terms, Rosenberg J., speaking for the court, said at p. 80 O.A.C., p. 277 C.P.C.:
What about the cross-appeal? The fact that it is a cross- appeal is of no significance. The jurisdiction issue is identical to that which would arise if a plaintiff who had received a judgment for $8,400 at trial wished to argue on appeal that the sum should be increased. Under the terms of [the section of the Act as it then stood], the jurisdiction of the Divisional Court is not dependent on the amount in issue in the proceedings but only on the amount of the payment ordered (the judgment). There appears to be no provision in the section limiting the amount by which the judgment can be increased by the Divisional Court. It is an appeal from a judgment for a single payment of not more than $25,000, exclusive of costs.
18I agree with this analysis. The issue of jurisdiction is determined by reference to the amount (exclusive of costs) the judgment orders to be paid. If that amount is not more than $25,000, the appeal lies to the Divisional Court, even if an appellant, a cross-appellant, or both, seek to recover on appeal a figure that is more than $25,000.
19In the present case, the amount, exclusive of costs, of which the judgment orders payment is $4,222. The judgment clearly falls within subclause 19(1)(a)(i), and the appeal lies to the Divisional Court.
Disposition
20This court lacks jurisdiction to entertain this appeal and, pursuant to s. 110 of the Act, it is transferred to the Divisional Court for determination. The respondents are entitled to their costs incurred in connection with their appearance before this court, fixed in the sum of $500, but payable only after the disposition of the appeal.
Order accordingly.
