Sepe v. Monteleone, 2004 CanLII 25114 (ON SCDC)

COURT FILE NO.: 03-BN-6519

DATE: June 14, 2004

SUPERIOR COURT OF JUSTICE - ONTARIO

(Divisional Court)

RE: Mario Sepe (Appellant) (Plaintiff) and Guiseppe Monteleone and Enza Monteleone (Respondents) (Defendants)

BEFORE: MATLOW, JENNINGS & SWINTON, JJ:

COUNSEL: John Whitehead, for the Appellant

Mark Penforld, for the Respondents

E N D O R S E M E N T

MATLOW, J:

1At the commencement of this appeal, the attention of both counsel was drawn to the recent ruling of this Court, constituted differently in part, in Osovetsky v Osovetsky, (unreported), Court File No. 460/03, dated April 16, 2004, in which it was held that this Court does not have jurisdiction to entertain an appeal under section 19 (1) (a) subclauses (ii) and (iii) of the Courts of Justice Act from a judgment of a judge of the Superior Court of Justice which provides for periodic payments and, as well, for the dismissal of a claim, which, taken together, exceed $25,000. Counsel were given an opportunity to review and consider that ruling and make submissions on whether it was applicable to this case to deprive us of jurisdiction for the same reasons.

2Section 19 (1) (a) of the Courts of Justice Act, the source of this Court’s appellate jurisdiction for this appeal, reads as follows;

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 (emphasis added)

(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);

3Counsel then returned to the courtroom and advised the Court that they were in agreement that the ruling in Osovetsky was applicable and that there was no proper basis upon which it could properly be distinguished. Accordingly, they requested that we adjourn this appeal to the Court of Appeal rather than quash it for want of jurisdiction. As was done in Osovetsky, we granted that request.

4We also stated that we would give written reasons for our decision for future guidance. These are those reasons.

5This appeal is from a judgment of a judge of the Superior Court of Justice which, by paragraph 1, dismissed the appellant’s claim for damages of $22,000 and, by paragraph 2, awarded the respondents damages on their counterclaim in the sum of $19,260. As is evident, each of these awards is for “not more than $25,000” but, taken together, because the appellant seeks to have both of these awards reversed, the total amount in issue on this appeal exceeds $25,000.

6The essence of this Court’s ruling in Osovetsky is contained in paragraphs 7 and 8 which read as follows;

“[7] In our view, the word, “or” that appears at the end of subclause (iii) should be understood as being applicable to each of the four subclauses. Taken literally, this means that in order for this Court to have jurisdiction, the order in appeal must be one that is described in only one of the four subclauses. However, in its context, it also means that this Court has jurisdiction if the order in appeal is described in more than one of the four subclauses but only if the total amount in issue does not exceed $25,000.

8This interpretation is consistent with the language used in the legislation and with its clear intention to confer appellate jurisdiction to this Court only in cases which involve no more than the stipulated ceiling. If the legislation were interpreted differently, it could produce the result that appeals involving periodic payments totalling slightly over $25,000 would lie to the Court of Appeal but appeals involving combinations of periodic payments and a single payment totalling $49,000 would lie to this Court. It is obvious that this would not be in accordance with the intention of the Legislature.”

7We are of the view that Osovetsky was correctly decided and that, for the reasons given in that case, we should apply its holding to the facts of this case.

8We recognize that the language of section 19 (1) (a) is not free of ambiguity and that it may be that it requires legislative clarification if the result now reached is not what was intended.