COURT FILE NO.: D0015-04
Thunder Bay
DATE: 20050923
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SMITH c.j.s.c., mATLOW, mcGARRY jj.
B E T W E E N:
Robert E. Somerleigh
Solicitor/Respondent
- and -
JEFFREY POLHILL
Client/Appellant
Richard Culpeper, for the Solicitor/Respondent
Walter C. Wieckowski, for the Client/Appellant
HEARD: June 7, 2005
REASONS FOR JUDGMENT
MATLOW J.
[1] 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 sec. 110 (1) of the Courts of Justice Act to the Court of Appeal of Ontario. No order as to costs with respect to today’s attendance. Written reasons to follow.
What follows are those reasons.
[2] The order in appeal is that of a judge of the Superior Court made on motion by the client for an order setting aside a certificate of costs made in favour of his former solicitor on various grounds set out in the notice of motion. The amount found owing by the client to the solicitor was $6,908.34. The substantive provision of the order reads as follows;
- THIS COURT ORDERS AND ADJUDGES that the motion to set aside the Certificate of Costs dated September 15, 1992, and set aside the Writ of Seizure and Sale filed with the Sheriff of the District of Thunder Bay is dismissed.
[3] At the commencement of the hearing of the appeal, we advised 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.
[4] Because 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 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 pursuant to section 18 (1) of the Courts of Justice Act (“the Act”), its appellate jurisdiction is entirely statutory. The sources of its jurisdiction are contained in section 19 of the Act and, as well, in various other statutes that confer appellate jurisdiction in appeals from orders of specific statutory boards and tribunals.
[5] It 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, section 19 (1) of the Act is much more restrictive and must be followed strictly in accordance with its wording. The relevant provision of section 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.
[6] Although 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 an order “for a single payment” and, therefore, this appeal does not fall within the scope of our jurisdiction.
[7] In the exercise of our discretion, we have transferred this appeal to the Court of Appeal pursuant to section 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.
Matlow, J.
Smith, C.J.S.C.
McGarry, J.
Released: September 23, 2005
COURT FILE NO.: D0015-04
Thunder Bay
DATE: 20050923
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SMITH, c.j.s.c., MATLOW, McgARRY, jJ.
B E T W E E N:
ROBERT E. SOMERLEIGH v JEFFREY POLEHILL
REASONS FOR JUDGMENT
MATLOW J..
Released: September 23, 2005