COURT OF APPEAL FOR ONTARIO

CITATION: Harte-Eichmanis v. Fernandes, 2012 ONCA 266

DATE: 20120426

DOCKET: C52497

Doherty and LaForme JJ.A. and Turnbull J. (ad hoc)

BETWEEN

Sandra Harte-Eichmanis and Peter Eichmanis

Appellants

and

Carmen Fernandes

Respondent

John J. Adair and Gordon McGuire, for the appellant

William G. Woodward, for the respondent

Heard: April 3, 2012

On appeal from the order of Justice Barry Matheson of the Superior Court of Justice, sitting with a jury, dated June 24, 2010.

ENDORSEMENT

[1] The appellant, Sandra Harte-Eichmanis, was in a motor vehicle accident with the respondent in October 2003. The respondent admitted liability and a trial proceeded before a judge and jury on the issue of damages alone.

[2] In the action Sandra Harte-Eichmanis claimed general damages in the amount of $500,000; Peter Eichmanis claimed damages of $75,000 pursuant to s. 61 of the Family Law Act, R.S.O. 1990, c. F.3. The appellants also claimed prejudgment and postjudgment interest as well as costs.

[3] After a nine-day trial, the jury’s answers to the questions, approved by counsel, were: (i) in respect of Sandra Harte-Eichmanis, general damages, $40,000; financial loss – past, present and future loss of income – “no dollars”; and (iii) in respect of Mr. Harte-Eichmanis, loss of guidance, care and companionship, “no dollars”.

[4] The trial judge’s final order granted Sandra Harte-Eichmanis damages in the amount of $10,000 ($40,000 less the statutory deduction of $30,000).

[5] On appeal the appellants argued that this court had jurisdiction to hear the appeal. After hearing counsels’ submissions we disagreed and transferred the appeal to the Divisional Court. We advised that reasons would follow. These are the reasons.

[6] The jurisdiction of this court is found at s. 6(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and s. 6(1)(b) provides that an appeal lies to the Court of Appeal from a final order of a judge of the Superior Court of Justice, except an order referred to in s. 19(1)(a). Section 19(1)(a) in turn provides that 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).

[7] Specific to this appeal, s. 19(1.2) provides that, (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 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 clause (a) or (b).

[8] Counsel for the appellants – not counsel at trial – submitted that the jury’s assessment of a claim for an amount equal to zero dollars constituted a dismissal of the appellants’ claims. The proper approach, he argued, is for the court to look to the amount actually claimed under that cause of action rather than the jury’s assessment.

[9] The appellants ask this court to consider its earlier decision in Canady v. Tucci, 2009 ONCA 554, 97 O.R. (3d) 145, in support of their submission that this court has jurisdiction to hear the appeal on the basis that, while the amount ordered by the trial judge for general damages does not exceed $50,000 (s. 19(1.2)(a)), the amount of the dismissed claim exceeds $50,000 (s. 19(1.2)(c)).

[10] The appellants also rely on Canady in support of their submission that the four subparagraphs of s. 19(1.2) are disjunctive and must be considered separately for the purpose of determining jurisdiction. Since the amount of their respective dismissed claims each exceeds $50,000, the appellants submit that this court has jurisdiction to hear the appeal.

[11] This reasoning is flawed for several reasons.

[12] Under s. 19(1)(a)(1.2)(a)-(d), the Divisional Court has appellate jurisdiction in specific circumstances. The purpose of s. 19(1)(a) is to define an easily applied cut-off line for litigants to determine the proper appeal route in any particular case. The line that was drawn by the legislature is the monetary amount of a judgment or dismissed claim of $50,000: Sepe v. Monteleone, 2006 CanLII 1173 (ON CA), at para. 6.

[13] When deciding whether the Divisional Court has jurisdiction, a beginning principle is that because the four subparagraphs are disjunctive each subparagraph is considered separately for the purpose of determining jurisdiction: Canady v. Tucci, 2009 ONCA 554, at para. 22. There are other principles to consider that flow from the language of the rule, namely:

• Where an amount is ordered to be paid, it is the amount of payment ordered, not the amount of the claim that is determinative: McGrath v. Woodrow (2001), 2001 CanLII 24163 (ON CA), 52 O.R. (3d) 732 (C.A.), at para. 16.

• Where an amount is ordered paid - s. 19(1.2)(a) or (b) - one looks at each subsection individually to determine if the amount of the judgment claim is under or over $50,000: Sepe, at para. 7.

• Where a claim is dismissed - s. 19(1.2)(b) or (c) - if the amount of a claim is not determined or is assessed at less than $50,000, jurisdiction is with the Divisional Court.

• All of the claims, whether allowed or dismissed and whether claimed by one party or more than one party, within each subparagraph are to be added together in order to apply s. 19(1)(a): Canady, at para. 23. One looks at the total amount assessed by the trial judge for all parties.

[14] Further, where the court finds no liability, or some other reason not to award damages that are otherwise proven or assessed at less than $50,000, an appeal lies to the Divisional Court: see, Sherman v. 21 Degree Heating and Air Conditioning Inc., 2008 CanLII 63156 (ON SCDC), at para. 5. Equally, an appeal lies to the Divisional Court in circumstances where, as here, liability is not in issue but the damages claimed have been assessed at zero dollars.

[15] The order which is subject of this appeal provides that the respondent must make a single payment of an amount that was not more than the amount set out in s. 19(1.2)(a) – $40,000 ($10,000 net of the $30,000 statutory deductible). Section 19(1.2)(a) applies because the trial judge made an order for a single payment of a sum of money less than $50,000.

[16] The amount claimed by Sandra Harte-Eichmanis ($500,000) is not relevant in the determination of jurisdiction. The determinative factor, as this court made clear in McGrath, is the amount of payment ordered, not the amount of the claim. An appeal lies to the Divisional Court because, liability is not in issue and the damages claimed were assessed at less than $50,000.

[17] Reading the subparagraphs disjunctively does not assist the appellants. Peter Eichmanis’ claim of $75,000 under the Family Law Act and the jury assessment of damages in the amount of zero dollars gives rise to the same result. Again, the amount claimed is not relevant; rather, the claim was not proven and the jury assessed damages at zero dollars.

[18] As a result, the appeal lies to the Divisional Court pursuant to s. 19(1)(a).

“Doherty J.A.”

“H.S. LaForme J.A.”

“Turnbull J. (ad hoc)”