Canady, Personal Representative of Mohammed, Deceased, et al. v. Tucci et al.

[Indexed as: Mohammed (Personal Representative of) v. Tucci]

97 O.R. (3d) 145

Court of Appeal for Ontario,

Feldman, MacFarland and Juriansz JJ.

July 7, 2009

Courts -- Jurisdiction -- Divisional Court -- Trial judge dismissing action and assessing damages at $5,000 under Trustee Act and $15,000 to each of two plaintiffs under Family Law Act -- Relevant amount for purposes of determining appellate jurisdiction being total assessed [page146] amount of all plaintiffs' claims -- Total amount of $35,000 beyond jurisdiction of Divisional Court -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19.

The plaintiffs' action for damages for medical malpractice arising out of the death of their infant son was dismissed. The trial judge assessed damages under the Trustee Act, R.S.O. 1990, c. T.23 at $5,000 and under the Family Law Act, R.S.O. 1990, c. F.3 at $15,000, each to the mother and the father, for a total of $35,000. The plaintiffs appealed to the Divisional Court. The Divisional Court found that because the total amount assessed by the trial judge was $35,000, it was without jurisdiction and transferred the appeal to the Court of Appeal. The plaintiffs moved for an order quashing the appeal and transferring the matter back to the Divisional Court.

Held, the motion should be dismissed.

All of the plaintiffs' claims that are the subject of dismissal must be added together to determine the total assessed amount of the dismissed claim for the purpose of applying s. 19(1)(a) and (1.1)(c) or 19(1)(a) and (1.1)(d) of the Courts of Justice Act. That rule applies not only to individualized claims by a single plaintiff for different heads of damages, but to the claims of the separate plaintiffs in one action. In this case, applying s. 19(1)(a) and (1.1)(d), the total amount assessed by the trial judge for all parties was $35,000, which was beyond the jurisdiction of the Divisional Court as it existed at the time the Notice of Appeal was filed.

MOTION to quash an appeal and transfer the matter to the Divisional Court.

Cases referred to McManus v. Feldman Investments Ltd., [2003] O.J. No. 5762 (C.A.); Sepe v. Monteleone (2006), 2006 CanLII 1173 (ON CA), 78 O.R. (3d) 676, [2006] O.J. No. 177, 262 D.L.R. (4th) 105, 207 O.A.C. 39, 22 C.P.C. (6th) 323, 144 A.C.W.S. (3d) 1027 (C.A.), consd Other cases referred to McGrath v. Woodrow (2001), 2001 CanLII 24163 (ON CA), 52 O.R. (3d) 732, [2001] O.J. No. 603, 141 O.A.C. 311, 6 C.P.C. (5th) 29, 103 A.C.W.S. (3d) 251 (C.A.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(a), (1.1) (a), (b), (c), (d) Family Law Act, R.S.O. 1990, c. F.3 Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, s. 67 Trustee Act, R.S.O. 1990, c. T.23

Allan Rouben and Scott M. Merrifield, for appellant. David I.W. Hamer, for respondent.

The judgment of the court was delivered by

MACFARLAND J.A.: -- Facts

[1] The appellants sued for damages arising from the death of their infant son alleging medical malpractice. [page147]

[2] The appellant father sued as personal representative of his deceased infant son for damages pursuant to the provisions of the Trustee Act, R.S.O. 1990, c. T.23 on behalf of the estate and in his personal capacity for damages pursuant to the provisions of the Family Law Act, R.S.O. 1990, c. F.3 for derivative claims. The appellant mother also sued for her derivative claims pursuant to the FLA provisions.

[3] In their statement of claim, the appellant father on behalf of his deceased son's estate claimed: (a) general damages in the amount of $10,000; [and] (b) special damages in the amount of $10,000.

[4] Both appellants, father and mother, in their personal capacities claimed: (a) general damages in the amount of $100,000, each pursuant to the provision of the Family Law Act.

[5] The trial of their action proceeded at London, Ontario before Kennedy J., and in reasons released January 3, 2007, their action was dismissed. The trial judge assessed damages under the Trustee Act at $5,000 and under the Family Law Act at $15,000 each to the mother and father for a total of $35,000.

[6] The appellants appealed to the Divisional Court taking issue both with the dismissal of the action and the assessment of damages.

[7] The appeal was argued before the Divisional Court on November 18 and 19, 2008. After argument on the appeal had been completed but before judgment thereon was released, the court had concern about its jurisdiction to hear the appeal and sought submissions from counsel. Following receipt of those submissions, the Divisional Court concluded that because the total amount assessed by the trial judge was $35,000, it was without jurisdiction and transferred the within appeal to this court by order dated March 18, 2009.

[8] Thereafter, the appellants moved before this court, inter alia, for: (c) if necessary, an order quashing the appeal herein and transferring the appeal back to the Divisional Court.

Issue

[9] The appellants' position is that for the purpose of determining jurisdiction, the claims of each separate plaintiff are to be considered separately. In this case, because the amount assessed [page148] by the trial judge in respect of each plaintiff was under $25,000, the appeal lies properly to the Divisional Court.

Analysis

[10] Both this court and the Divisional Court are statutory courts which find their jurisdiction in their constating statute -- the Courts of Justice Act, R.S.O. 1990, c. C.43 (the "Act").

[11] The Notice of Appeal was filed February 1, 2007, prior to the coming into force of amendments to the Act which raised the monetary jurisdiction of the Divisional Court.

[12] The jurisdiction of the Divisional Court is found in s. 19 of the Act:

19(1) 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); . . . . .

(1.1) If the notice of appeal is filed before the day section 3 of Schedule A to the Access to Justice Act, 2006 comes into force, clause (1) (a) applies in respect of a final order, (a) for a single payment of not more than $25,000 exclusive of costs; (b) the periodic payments that amount to not more than $25,000, 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 clause (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 clauses (a) or (b).

[13] Because of the timing of the Notice of Appeal, if the Divisional Court is to have jurisdiction it must be found within s. 19(1)(a) [and] (1.1). The judgment which is the subject of the within appeal merely provides that the action is dismissed with costs, if demanded. Neither subpara. (a) nor (b) applies because the judgment did not order payment of any money sum.

[14] Similarly subpara. (c) does not apply because the judgment did not dismiss claims [See Note 1 below] for an amount that was not more than the [page149] amounts set out in subparas. (a) or (b), i.e., $25,000. The judgment dismissed claims which totalled $120,000.

[15] Finally, subpara. (d) cannot apply. While the dismissed claims were for an amount more than the amounts set out in (a) or (b) as required by the first part of [subpara.] (d), the judge's assessment of the claims here, is for a total amount which exceeds $25,000, namely $35,000.

[16] All of the plaintiffs' claims that are the subject of the dismissal must be added together to determine the total assessed amount of the dismissed claim for the purpose of applying s. 19(1)(a) [and] (1.1)(c) or 19(1)(a) [and] (1.1.) (d). This rule applies not only to individualized claims by a single plaintiff for different heads of damages, but to the claims of the separate plaintiffs in one action. Once the amount of either the judgment, or where the claims were dismissed, the dismissed claims and the amount assessed by the trial judge, is determined, then reference is made to s. 19(1) (a) to determine if jurisdiction lies with the Divisional Court.

[17] I say, with respect to the Divisional Court, the decisions of this court in McManus v. Feldman Investments Ltd., [2003] O.J. No. 5762 (C.A.) and Sepe v. Monteleone (2006), 2006 CanLII 1173 (ON CA), 78 O.R. (3d) 676, [2006] O.J. No. 177 (C.A.) are consistent with each other and with these reasons.

[18] In McManus, the total amount of the judgment was $148,143 in favour of the plaintiff. Of that sum, the appeal was only in relation to the punitive damages, which were assessed at $16,750. However, the appeal lay to this court because the amount of the judgment was in excess of $25,000. In McManus, the court quoted [at para. 6] from the decision of Catzman J.A. in McGrath v. Woodrow (2001), 2001 CanLII 24163 (ON CA), 52 O.R. (3d) 732, [2001] O.J. No. 603 (C.A.) where he explained:

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.

[19] In Sepe, the plaintiff bricklayer sued for the sum of $18,000 for brickwork he had completed for the defendant homeowners.

[20] The homeowners counterclaimed for damages in the sum of $20,000 for shoddy work and in addition claimed the sum of $3,387.49 by way of set-off. The homeowners conceded the value of the plaintiff's work to be $12,146.06.

[21] The trial judge dismissed both the appellant plaintiff's claim and the homeowners' claim for set-off. She awarded the [page150] homeowners $19,260 on their counterclaim. The appellant plaintiff appealed the dismissal of his claim and the award of judgment on the defendant respondents' counterclaim.

[22] To determine jurisdiction, again reference was to s. 19(1)(a) [and] (1.1) of the Act. As this court explained in Sepe, because the four subparagraphs that deal with jurisdiction are disjunctive each subparagraph is considered separately for the purpose of determining jurisdiction. The dismissal of the appellant Sepe's claim fell within s. 19(1)(a) [and] (1.1)(c) -- dismissal of a claim that is for an amount not more than $25,000; he had claimed $18,000. As for the counterclaim of the respondent defendants, the trial judge had awarded the sum of $19,260 -- again a judgment sum for an amount less than $25,000, under s. 19(1)(a) [and] (1.1)(a). Accordingly, there was no amount over $25,000 and the appeal lay to the Divisional Court. [See Note 2 below]

[23] The judgment records the claims allowed and the claims that have been dismissed and is the key document to which reference must be made in determining the applicability or not of s. 19 of the Act. The subsections of s. 19 are, as this court noted in Sepe, disjunctive and they must be read and interpreted in that way. However, within each subsection, all of the claims whether allowed or dismissed and whether claimed by one party or more than one party are to be added together in order to apply s. 19(1)(a).

[24] In this case, applying s. 19(1.1)(d), one looks at the total amount assessed by the trial judge for all parties. That amount is $35,000, and therefore beyond the jurisdiction of the Divisional Court.

Conclusion

[25] For these reasons I conclude the appeal properly lies to this court and the motion to quash is dismissed.

[26] While the point raised is not an entirely novel one, nevertheless there remains, it appears, some confusion over the applicability of s. 19 of the Act and, in the circumstances, I agree with Mr. Hamer's proposal that there be no costs.

Motion dismissed.

Notes

Note 1: The Legislation Act, 2006, S.O. 2006, c. 21, Sch. F provides in s. 67 thereof:

67. Words in the singular include the plural and words in the plural include the singular.

Note 2: In Sepe, the Court of Appeal constituted itself as the Divisional Court with the concurrence of the Chief Justice of the Superior Court as the appellant was self-represented, the Divisional Court had declined jurisdiction and the partied were ready to proceed.