Watson v. Boundy et al. [Indexed as: Watson v. Boundy]

49 O.R. (3d) 134

[2000] O.J. No. 895

Nos. M25419 and C31267

Court of Appeal for Ontario

Morden, Abella JJ.A. and O'Driscoll, J. (ad hoc)

March 21, 2000*

*Note: This judgment only recently came to the attention of the editors.

Appeal -- Jurisdiction -- Judge of Superior Court dismissing plaintiff's action but assessing damages in amount less than $25,000 exclusive of costs -- Judge awarding defendant costs in amount exceeding $25,000 -- Plaintiff appealing judgment and also costs order -- Appeal lies to Divisional Court and not to Court of Appeal -- Costs appeal must follow main appeal -- Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(2), 19(1), 110.

Civil procedure -- Appeals -- Jurisdiction -- Judge of Superior Court dismissing plaintiff's action but assessing damages in amount less than $25,000 exclusive of costs -- Judge awarding defendant costs in amount exceeding $25,000 -- Plaintiff appealing judgment and also costs order -- Appeal lies to Divisional Court and not to Court of Appeal -- Costs appeal must follow main appeal -- Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(2), 19(1), 110.

The trial judge assessed the plaintiff's damages at $3,124.30 but dismissed his action and awarded $84,000 costs to the defendants on a solicitor and client basis. The plaintiff filed a notice of appeal of the judgment and of the costs award to the Court of Appeal. The defendants moved to quash the appeals on the ground that they should be to the Divisional Court.

Held, the appeals should be transferred to the Divisional Court under s. 110 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

By reason of the assessment of damages of $3,124.30, the appeal from the judgment was to the Divisional Court, which has jurisdiction under s. 19(1) of the Courts of Justice Act for an appeal 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. The costs order is appended to the judgment dismissing the action, and the appeal from it should also be taken to the Divisional Court. The costs appeal, which is a contingent appeal that requires leave should the main appeal be dismissed, must follow the main appeal. Although the costs order exceeded $25,000, this factor did not provide the Court of Appeal with jurisdiction to hear the appeal under s. 6(2) of the Courts of Justice Act. This was recognized by rule 61.03.1(17), which sets forth the procedure to govern a case in which it is sought to join a costs appeal, which requires leave to appeal, with an appeal as of right. Accordingly, the appeals should be transferred to the Divisional Court under s. 110 of the Courts of Justice Act.

MOTION to quash appeal.

Cases referred to Murano v. Bank of Montreal (1998), 1998 5633 (ON CA), 41 O.R. (3d) 222, 163 D.L.R. (4th) 21, 41 B.L.R. (2d) 10, 5 C.B.R. (4th) 57, 22 C.P.C. (4th) 235 (C.A.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(2), 19(1)(a) (iv), 110 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 61.03.1(17)

Eric P. Polten, for appellant. John Jacques Abdo, for respondents.

The judgment of the court was delivered by

[1] MORDEN J.A. (orally): -- The defendants, respondents in this appeal, move for an order quashing the appeal. The following is an outline of the circumstances.

[2] In the action the plaintiff sought over $200,000 in damages. The trial judge dismissed the action but in her reasons she assessed the plaintiff's damages at $3,124.30. She ordered that the costs be payable to the defendants on a solicitor and client basis and then fixed these costs at $84,000.

[3] By reason of the $3,124.30 assessment and s. 19(1)(a)(iv) of the Courts of Justice Act, R.S.O. 1990, c. C.43, it is clear that the appeal from the judgment dismissing the action lies to the Divisional Court. This is the main appeal in this proceeding. The costs order is appended to the judgment dismissing the action and the appeal from it should, therefore, also be taken to the Divisional Court.

[4] From the foregoing, it can be seen that we do not accept the appellant's submission that this court has jurisdiction to hear the appeals under s. 6(2) of the Courts of Justice Act by reason of the appeal from the dismissal of the action "piggy- backing" onto the appeal from the costs order which is for a payment exceeding $25,000.

[5] It is clear that the costs appeal, which is a contingent appeal that requires leave should the main appeal be dismissed (Murano v. Bank of Montreal (1998), 1998 5633 (ON CA), 41 O.R. (3d) 222 at pp. 241-43, 163 D.L.R. (4th) 21 (C.A.)), must follow the main appeal. This must be so even though the costs appeal, by virtue of the fixing of costs, is from an order for payment of more than $25,000. This is recognized in rule 61.03.1(17) which sets forth the procedure to govern a case in which it is sought to join a costs appeal, which requires leave to appeal, with an appeal as of right.

[6] The appeals are transferred to the Divisional Court under s. 110 of the Courts of Justice Act. Costs of this motion are awarded to the responding parties in the amount of $2,000 payable forthwith.

Order accordingly.