Court File and Parties

CITATION: Nicolardi v. Daley, 2007 ONCA 903

DATE: 20071227

DOCKET: C44819

COURT OF APPEAL FOR ONTARIO

WINKLER C.J.O., CRONK and EPSTEIN JJ.A.

BETWEEN:

JOSEPH NICOLARDI

Appellant (Plaintiff)

and

BRUCE J. DALEY, NOEL DALEY, KENNETH R. BYERS and WILLIAM C. FANJOY

Respondents (Defendants)

Counsel:

David Zuber, for the appellant

Thomas Wright and Shawn Stringer, for the respondents

Heard and released orally: December 18, 2007

On appeal from the judgment of Justice Donald R. Cameron of the Superior Court of Justice, dated September 27, 2005.

ENDORSEMENT

[1] In our view, this appeal must be quashed for want of jurisdiction. Although s. 19(1)(a)(iii) of the Courts of Justice Act, R.S.O. 1990 c. C.43 (now s. 19(1.1)(c)) does not apply – as has been argued by the respondents – s. 19(1)(a)(i) (now s. 19(1.1)(a)) does apply. The order under appeal is 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”.

[2] This conclusion is consistent with the decision of this court in Sepe v. Monteleone (2006), 2006 CanLII 1173 (ON CA), 78 O.R. (3d) 676. In that case, at para. 7, this court stressed that the wording of s. 19(1)(a) is disjunctive and that each clause of that section must be considered individually to determine the question of jurisdiction. Paragraph 9 of the Sepe decision must be read together with para. 7. In combination, these paragraphs indicate that where one of the conditions in s. 19(1)(a) of the Act is met, the matter must be appealed to the Divisional Court.

[3] Accordingly, for the reasons given, the appeal is quashed for want of jurisdiction, without prejudice to the appellant’s right to initiate an appeal to the Divisional Court. In all the circumstances, we make no award of costs in respect of this appeal.

“W. Winkler C.J.O.”

“E.A. Cronk J.A.”

“G. Epstein J.A.”