CITATION: Grewal et al. v. Sidhu et al, 2014 ONSC 6223
COURT FILE NO.: DC-14-10-ML
DATE: 20141027
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GURDEV SINGH GREWAL, MOHINDER SINGH MATHAROO AND GREAT LAKES KNITTING MILLS LTD.
M. Solmon and F. Damji, for the Applicants/appellants
Applicants/appellants
- and -
FATEH SINGH SIDHU, a.k.a. FATEH SIDHU AND KULVINDER SIDHU
W. Jaskiewicz for the Respondents
Respondents
HEARD: October 22, 2014
ENDORSEMENT
MACKENZIE J.
NATURE OF THE PROCEEDING
[1] The appellants move under section 133 of the Courts of Justice Act (CJA) for leave to appeal the costs order of Donohue J. dated January 19, 2014, to the Divisional Court.
BACKGROUND
[2] Donohue J. made two orders, the first being a dismissal of the Respondent K. Sidhu’s (K.S.) motion to set aside a judgment against her for 1.2 million dollars. In the second order Donohue J. awarded costs on a substantial indemnity basis against K.S., but dismissed the appellant’s motion for costs payable by the lawyers for the Respondent on a personal basis resulting from allegations that the lawyers for K. S. knew an affidavit she had put before the court was false.
[3] The particulars giving rise to the allegation of a false affidavit made by K.S. are not pertinent for the purposes of this motion for leave to appeal.
[4] As noted, Donohue J. ordered substantial indemnity costs against K.S. but she denied the request of the appellants for a costs order on a personal level against K.S.’s lawyer. The amount of the costs sought personally against the lawyer was $12,924.
THE ISSUE
[5] The relevant statutory provisions regulating appeals are set out below:
Section 133, CJA:
No appeal lies without leave of the court to which the appeal is to be taken,
a) from an order made with the consent of the parties; or
b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs.
Section 19 (1) CJA,
An appeal lies to the Divisional Court from,
a) a final order of a judge of the Superior Court of Justice, as described in subsections (1.1) and (1.2);
b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court;
c) a final order of a master or case management master.
(1.1) [Not applicable]
(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 out in (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).
POSITIONS OF THE PARTIES
[6] The Applicants/appellants refer to section 133(b), CJA, which provides:
that (b) where the appeal is only as to the costs that are in the discretion of the court that made the order for costs,
and section 19 (1.2)(c), CJA, which provides for an appeal to the Divisional Court in respect of a final order for dismissing a claim for an amount that is not more than the amount set out in clause (a) or (b).
[7] The position of the responding party on the jurisdiction issue is that the Divisional Court does not have jurisdiction to hear the applicant’s motion for leave to appeal to the Divisional Court.
[8] In support of its position, the responding party refers to a decision of the Divisional Court, Chowdhury v. Knight, 2005 11795, wherein the Divisional Court (per Matlow J.) held that as a statutory court, the jurisdiction for the Divisional Court would be contained in section 19 of the CJA and that as the summary judgment in appeal before it was a “final order,” it was for more than the monetary limit in section 19(1) at the time and accordingly, s. 19 did not apply resulting in the court’s conclusion that the Divisional Court did not have jurisdiction to hear the proposed appeal.
Analysis
[9] By way of preliminaries, the court drew the attention of counsel to the recent decision of the Court of Appeal in Hanisch v. McKean, 2014 ONCA 698, released October 14, 2014. In that case, the issue arose on the question of jurisdiction as in the present case. The respondent submitted that Divisional Court had jurisdiction to hear the appeal because the appeal related solely to the damages award of $25,500 and the appeal did not relate to the non-monetary relief awarded in the judgment, namely, declaratory relief.
[10] The Court of Appeal in Hanisch focussed on the meaning of the words “final order” as they appear in section 19 of the CJA. In this regard, the Court pointed out that if the term “final order” is properly read as referring to a particular term of a final order under appeal, then an appeal of that term lies to the Divisional Court. However, if the term “final order” must be read as meaning the entire final order, irrespective of what provisions of the final order are under appeal, then it is Ontario Court of Appeal that has jurisdiction to entertain the appeal.
[11] The Court then goes on to discuss the proper approach in interpreting the term “final order” and concludes it would not make sense to interpret the term “final order” as meaning anything other than the whole of the final order. (my emphasis)
[12] The Court of Appeal makes the following observations which are pertinent to the jurisdictional issues raised in this case:
When read in light of the purpose of section 19, which is to provide an easily applied cut off line for litigants to determine the proper appeal route in any particular case, it is my view that “final order” as it appears in sections 6 and 19 can only sensibly be interpreted as meaning the whole of the final order. Otherwise, the proper appeal route from an order could change, depending on the terms of the order and the grounds of the appeal or cross appeal (para 27).
Further:
[I]n applying the four paragraphs in each of sections 19(1.1) and (1.2) of the CJA to determine which court has jurisdiction, this court has generally focussed on the final order as a whole and not simply the aspect of the order under appeal or the amount claimed on appeal by the individual parties (para. 28).
[13] In the result, the Court of Appeal in Hanisch construed the term “final order” as it appears in sections 6 and 19 of the CJA as referring to the whole of the final order and not any part of the final order. (my emphasis)
[14] The Applicants/appellants sought to distinguish the dicta in the Hanisch case by pointing out that in the present case, the term that is the subject of this motion for leave to appeal affects a non-party, namely a costs award against the lawyer for one of the parties, whereas in Hanisch the dicta must be construed as applying to the parties to the lis.
[15] In support of this position, counsel for the Applicants/appellants cites several cases, one of which is another decision of the Ontario Court of Appeal, Morse (Shoe Canada Ltd.) v. Zellers Inc., 1997 1573 (ON CA), 100 O.A.C. 116, [1997] O.J. No. 1524. This case addressed the question of whether a particular order in respect of which appellate review was being sought was interlocutory or final in nature. The issue was whether an order relating to the production of documents by a non-party to the litigation in respect of which appellate review was being sought was to be construed as final or interlocutory in order to determine the appropriate forum for appeal, i.e. the Divisional Court or the Court of Appeal. The Court of Appeal in Morse determined that the order in question was final in nature and the order below was set aside.
[16] The other cases cited by the Applicants/appellants in support of its position that the costs order against a lawyer cannot be considered as part of the final order for purpose of jurisdictional issues are disputed by the respondent as being determinative of the issue in this case, on the basis of the above dicta from the Court of Appeal in Hanisch.
[17] There are succinct passages in The Law of Costs, Mark M. Orkin, The Law of Costs, Volume 2, Second edition, (Toronto: Thomson Reuters, 2014) at 8-5, setting out the state of the law as of June 2014 relating to the appropriate forum for appellate review of costs orders. On the appellate jurisdiction of the courts relating to review of costs orders, the author states the following:
The court to which an appeal as to costs will lie is determined by the nature of the order awarding costs. An order for costs made by a judge at the conclusion of a trial is a final order. In other cases, it will be necessary to determine as a preliminary matter where the costs order is final or interlocutory. The question of whether an order as to costs is final or interlocutory will depend on the nature of the order to which it is attached. Thus, the costs portion of an interlocutory order is itself interlocutory, and the costs portion of a final order is final (See ref. 801.4.1.).
[18] Another decision by the Ontario Court of Appeal is instructive on the issue in this motion. In CanWest Media Works Inc. v. Canada (AG), 2007 ONCA 567, [2007] O.J. No. 3119, the issue of whether a particular order was final or interlocutory arose in the situation where a media outlet appealed from the dismissal of its motion where a summons was to issue to an out-of-jurisdiction expert. The court in CanWest Media Works held that the order in question was a final order and the route of appellate review was to the Court of Appeal. In coming to this decision, the Court in CanWest referred to its earlier decision, Smerchanski v. Lewis (1980), 1980 1699 (ON CA), 30 O.R. (2d) 370 (C.A.) citing the following dicta:
“…it is my view that the appealability of an order is determined by the nature of the order made and not by the identity of the successful party.” (pp. 377-380)
[19] In CanWest, the Court stated that recent decisions of the Court of Appeal had not narrowed the scope of Smerchanski, making specific reference to the Morse Shoe case. In Morse Shoe, there had been an appeal of an order dismissing a motion for production of documents by a non-party and the Court in deciding the case on whether it had jurisdiction to hear the appeal stated as follows:
It is clear the order below would be final as against the First National Bank of Boston and as between First National Bank of Boston and Zellers: the order finally disposes of the issue between them. I am therefore satisfied that this court has jurisdiction to hear the appeal, notwithstanding that the only opposition to the application and to the appeal comes from the plaintiff (MorseShoe) rather than from First National Bank of Boston (para 6).
CONCLUSION
[20] On the basis of Hanisch v. McKean and the submissions made, I am not persuaded that the fact of the order which is sought to be the subject of appellate review was made against a non-party is dispositive. The order of costs against the non-party (being the lawyer) is made as part of the judgment and cannot be severed or segregated from that judgment. The order respecting costs is final and not interlocutory: in the result, the Divisional Court has no jurisdiction to entertain an appeal respecting such order.
COSTS
[21] The costs of this application may be the subject of written submissions by the parties if they are unable to agree on the same. In the event of disagreement:
I will entertain written submissions from the respondents not to exceed four pages exclusive of supporting materials, to be served and filed within 30 days from the date of this endorsement;
responding submissions following the same format, from the Applicants/appellants within 10 days of receipt of the respondent’s submissions; and
reply submissions, if any, within 7 days of receipt of the responding submissions.
MACKENZIE J.
Released: October 27, 2014
CITATION: Grewal et al. v. Sidhu et al, 2014 ONSC 6223
COURT FILE NO.: DC-14-10-ML
DATE: 20141027
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GURDEV SINGH GREWAL, MOHINDER SINGH MATHAROO AND GREAT LAKES KNITTING MILLS LTD
- and –
FATEH SINGH SIDHU, A.K.A. FATEH SIDHU AND KULVINDER SIDHU
ENDORSEMENT
MacKenzie J.
Released: October 27, 2014