DATE: 2003-12-17 DOCKET: M30675

COURT OF APPEAL FOR ONTARIO

RE:

JOHN MCMANUS (Respondent (Plaintiff)) - and - G.R. FELDMAN INVESTMENTS LTD. (Appellant (Defendant))

JOHN MCMANUS (Cross-Appellant (Plaintiff)) - and - G.R. FELDMAN INVESTMENTS LTD. (Respondent (Defendant))

BEFORE:

FELDMAN J.A. (In Chambers)

COUNSEL:

Eric Murray, Q.C. for the appellant John McManus

Derek V. Abreu for the respondent(defendant) G.R. Feldman Investments Ltd.

HEARD:

December 10, 2003

ENDORSEMENT

[1] The plaintiff sued the defendant and was awarded judgment in the total amount of $148,143.50, including $16,750 of punitive damages.

[2] The defendant appealed only the punitive damages portion of the award in the amount of $16,750 to the Divisional Court. The costs of $115,000 were also awarded to the plaintiff. The plaintiff seeks higher costs on the substantial indemnity scale and has cross-appealed. The plaintiff seeks to have both the appeal by the defendant and its cross-appeal heard together in the Court of Appeal.

[3] After the argument of the motion, upon consideration of the facts, I raised with counsel by letter, whether the original appeal was properly brought before the Divisional Court and received responses from both counsel.

[4] In my view, the matter turns on the interpretation of s. 19(1)(a) of the Courts of Justice Act and in particular whether the original appeal by the defendant is to the Divisional Court or to the Court of Appeal. Section 19(1)(a) states:

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.

[5] Paragraph 1 of the Judgment reads:

1. THIS COURT ORDERS that the defendant shall pay to the plaintiff general damages in the amount of $33,375.00, damages for loss of income from February 4, 2001 to October 6, 2003, in the amount of $51,000.00, damages for future loss of income in the amount of $34,900.00, special damages in the amount of $862.96 and punitive damages in the amount of $16,750.00.

[6] In McGrath v. Woodrow (2001), 2001 24163 (ON CA), 52 O.R. (3d) 732, Catzman J.A. stated:

The pivotal concept in subclause 19(1)(a)(i) is the amount of the judgment. It is not the amount claimed in the action or counterclaim. It is not the amount "involved" in the appeal or "in issue" in the appeal. Jurisdiction under subclause 19(1)(a)(i) turns on the amount of the payment ordered by the judgment sought to be appealed.

[7] The final order in this case was not for $16,750 but was for the total amount of $148,143.50 exclusive of costs. Although the wording of paragraph 2 of the order breaks down the award in accordance with the findings of the jury and does not state the total, that does not change the effect of the order which is one order for the total amount of the judgment of the jury.

[8] Effectively, the defendant in its appeal seeks to have the court reduce the judgment by $16,750. The appeal is therefore in respect of a final order for more than $25,000 and is properly brought to the Court of Appeal.

[9] Accordingly, the cross-appeal is also properly in the Court of Appeal and pursuant to rule 61.03.1(18)(19) leave will be sought from the panel hearing the appeal and proposed cross-appeal on the cross-appeal with respect to costs.

[10] In the circumstances, there shall be no costs of this motion. The defendant/respondent on this motion shall have an extension of time to transfer the original appeal and cross appeal to this court.

Signed: "K. Feldman J.A."