Sinnadurai v. Laredo Construction Inc. et al. [Indexed as: Sinnadurai v. Laredo Construction Inc.]
77 O.R. (3d) 23
[2005] O.J. No. 2886
Court File No. 655/04
Ontario Superior Court of Justice
Divisional Court
Matlow, Jennings and Linhares de Sousa JJ.
July 8, 2005
Courts -- Jurisdiction -- Divisional Court -- Divisional Court not having jurisdiction to hear appeal from order of judge of Superior Court of Justice dismissing motion to set aside default judgment in amount of $15,000 -- Order not an order "for a single payment" as required by s. 19(1)(a)(i) of Courts of Justice Act -- Appeal transferred to Court of Appeal -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(a)(i).
The appellant appealed to the Divisional Court from an order of a judge of the Superior Court of Justice dismissing a motion for an order setting aside a default judgment in the amount of $15,000.
Held, the appeal should be transferred to the Court of Appeal. [page24]
The source of the Divisional Court's appellate jurisdiction is contained in s. 19 of the Courts of Justice Act. Section 19(1)(a)(i) provides that an appeal lies to the Divisional Court from a final order of a judge of the Superior Court for a single payment of not more than $25,000, exclusive of costs. Although the order in appeal was a final order of a judge of the Superior Court of Justice, it was not, in form or substance, an order "for a single payment". Despite the fact that the order was for less than $25,000, the Divisional Court did not have jurisdiction to hear the appeal.
APPEAL to the Divisional Court from an order dismissing a motion for an order setting aside a default judgment.
Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 18 [as am.], 19 [as am.], 110
Phillip Cho, for plaintiff (respondent). Paul H. Starkman, for appellant, Laredo Construction Inc.
The judgment of the court was delivered by
Introduction
1MATLOW J.:-- At the conclusion of the hearing of this appeal, this court made the following endorsement on the appeal book and compendium;
We have no jurisdiction to hear this appeal. This appeal from the final order of a Superior Court Judge is transferred under section 110(1) of the Courts of Justice Act to the Court of Appeal of Ontario. We make no order as to costs with respect to today's attendance. Written reasons are to follow.
What follows are those reasons.
2The order in appeal is that of a judge of the Superior Court dismissing a motion by the corporate defendant for an order setting aside a default judgment granted against it without notice by another judge of the Superior Court. The amount awarded by the default judgment for the plaintiff's claim was $15,000. The substantive provision of the order in appeal reads as follows:
- THIS COURT ORDERS that the within motion is hereby dismissed.
3At the commencement of the hearing of the appeal, we advised both counsel that we doubted our jurisdiction to hear the appeal and we invited them to make submissions on that issue. After a recess which was granted to give counsel an opportunity to consider the issue, we heard their respective submissions and then confirmed our initial concern.
Jurisdiction of the Divisional Court
4Because of the frequency with which appeals are attempted to be brought in the Divisional Court outside the scope of the court's jurisdiction, it is important that we remind counsel and others once again of the need to address our statutory jurisdiction before instituting an appeal in this court. Even though the Divisional Court is continued as a branch of the Superior Court [page25 ]pursuant to s. 18(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the "Act"), its appellate jurisdiction is entirely statutory. The source of its jurisdiction is contained in s. 19 of the Act and, as well, in various other statutes that confer appellate jurisdiction in appeals mainly from orders of specific statutory boards and tribunals.
5It is not uncommon, as this case demonstrates, for appellants to assume that every order that involves not more than $25,000 can be appealed to this court. However, s. 19(1) of the Act is much more restrictive and must be followed strictly in accordance with its wording. The relevant provision of s. 19(1) 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.
6Although the order in appeal is, as recognized by our endorsement, a final order of a judge of the Superior Court of Justice, it is not, in form or substance, an order "for a single payment" and, therefore, this appeal does not fall within the scope of our jurisdiction.
Transfer of the Appeal
7In the exercise of our discretion, we have transferred this appeal to the Court of Appeal pursuant to s. 110(1) of the Act which reads as follows:
110(1) 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.
It is important, however, to observe that this authority is permissive only and it should not be assumed that similar transfers will be made in all appeals which are brought in error to this court.
8It is of some importance that this appeal was originally brought to the Court of Appeal. Shortly after it was commenced, counsel for the appellant concluded that the appeal ought to have been brought to this court. Accordingly, he moved before a single judge of the Court of Appeal in chambers for an order transferring the appeal to this court. No one appeared on behalf of the respondent and the chambers judge was advised that the motion for a transfer was unopposed. Accordingly, the order sought was granted summarily and without reasons.
9In the appellant's notice of motion returnable before the Court of Appeal, he stated as follows:
e. As the judgment in question is less than $25,000.00 exclusive of costs, the appeal should have been properly brought in the Divisional Court. [page26 ]Soon after the appeal had been perfected and filed with this court, it came to the attention of Laredo's counsel that through inadvertence, the appeal was initiated improperly in this court and must be transferred to the Divisional Court to be heard by a panel of judges.
In my respectful view, in making this assertion, counsel for the appellant fell into the very error referred to in para. 5 above.
10We are always respectful of and almost without exception bound by decisions made by judges of the Court of Appeal. However, having regard to the unusual circumstances in which the order for a transfer was made, I am persuaded that we should not follow its implicit recognition that we do have jurisdiction without further consideration of the issue by the Court of Appeal for the following reasons:
(i) it was made on the basis of a submission by counsel for the appellant that was based on a clearly erroneous premise;
(ii) it was made without opposition and without opposing argument;
(iii) it was made without reasons and without any other explicit indication that it was made after specific consideration of s. 19 of the Courts of Justice Act;
(iv) it purports to confer an appellate jurisdiction on the Divisional Court which this court has frequently held in similar cases is not conferred by the Courts of Justice Act and, if followed, would have a disruptive impact on appellate practice in this court;
(v) in the event that it is we who err in our interpretation of the Courts of Justice Act and that we do have jurisdiction to hear this appeal, justice would be best served if our consideration of this appeal were postponed until after further clarification by the Court of Appeal;
(vi) our decision to decline jurisdiction until after further clarification by the Court of Appeal is based on a principled approach, and
(vii) comity between judges at different levels of the judicial hierarchy, the principle upon which stare decisis is based, would still be maintained without compromise.
11Our interpretation of the extent of our appellate jurisdiction pursuant to s. 19 of the Courts of Justice Act is based not only on the language of the statute but also on the principle [page27] underlying the section. It seems clear that the legislature saw fit to cloak this court to hear appeals from final orders made by judges for relatively small amounts of money. However, the order in appeal in this case is not such a case in which only the merits of the respondent's claim are in issue. Rather, on this type of appeal there are other issues raised which relate to the manner in which the motion judge exercised his discretion in refusing to set aside the default judgment and the merits of the respondent's claim was only one of them. It may be, therefore, that it is this greater complexity which lead the legislature to let this type of appeal remain within the exclusive jurisdiction of the Court of Appeal.
Order accordingly.