COURT OF APPEAL FOR ONTARIO

CITATION: Laurentian Bank of Canada v. Goldshmidt, 2013 ONCA 122

DATE: 20130226

DOCKET: M42014 (C55815)

Epstein, Pepall and Tulloch JJ.A.

BETWEEN

Laurentian Bank of Canada

Plaintiff

(Respondent in Appeal)

(Moving Party on Motion)

and

Rima Goldshmidt

Defendant

(Appellant)

(Respondent on Motion)

Lee Guarino, for the moving party

Rima Goldshmidt, acting in person

Heard: January 24, 2013

ENDORSEMENT

[1] On November 16, 2010, the respondent obtained default judgment against the appellant. The appellant was ordered to pay the respondent $33,521.87 plus costs of $1,155.50, and to deliver up possession of personal property, including a boat and a trailer, to the respondent.

[2] The appellant brought a motion to set aside the default judgment. This motion was dismissed by Langdon J. of the Superior Court of Justice on June 28, 2012. The appellant appealed that order to this court.

[3] The respondent moves to quash the appeal on the grounds that this court lacks jurisdiction. It relies on ss. 19(1)(a) and (1.2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“the Act”), which provide that an appeal lies to the Divisional Court from a final order for a single payment of not more than $50,000, exclusive of costs, if the notice of appeal is filed on or after October 1, 2007. The respondent submits that because the judgment does not exceed $50,000, the appeal lies to the Divisional Court.

[4] This court has held that an appeal from a default judgment does not lie to the Court of Appeal because it is not a final order: National Bank of Canada v. Royal Bank of Canada (1999), 1999 CanLII 3733 (ON CA), 44 O.R. (3d) 533 (Ont. C.A.). Consistent with that holding, the order under appeal in this case is not the default judgment itself but the order dismissing the motion to set aside the default judgment.

[5] In Marcus Direct Marketing Inc. v. M. & K. Plastic Products Ltd., 1989 O.J. No. 467 (Ont. C.A.), this court held that an appeal from an order refusing to set aside a default judgment in the amount of $3,787.81 lay to the Court of Appeal. Applying the plain meaning of a predecessor to s. 19 of the Act, the court determined that the appeal was not from an order for payment and therefore did not fall within the Divisional Court’s jurisdiction.

[6] In contrast, in Sinnadurai v. Laredo Construction Inc. (2005), 2005 CanLII 46934 (ON CA), 78 O.R. (3d) 321 (Ont. C.A.), this court held that an appeal from an order dismissing a motion to set aside a default judgment in the amount of $15,000 lay to the Divisional Court. Marcus Direct Marketing was not brought to the attention of the panel hearing that case.

[7] For the purposes of this motion it is unnecessary to resolve this debate. Regardless of the authority applied, this court has jurisdiction over this appeal. The default judgment in this case included an order to deliver up possession of personal property in addition to the payment of the monetary amount of $33,521.87. The appellate jurisdiction of the Divisional Court, as set out in s. 19 of the Act, is prescribed by a monetary threshold. The language is clear. The appellate jurisdiction of the Divisional Court does not extend to the recovery of personal property. The significance of this omission is strengthened by the observation that s.19 does not contain language akin to s. 31(b) of the Act, which expressly provides that an appeal lies to the Divisional Court from a final order of the Small Claims Court in an action for the recovery of possession of personal property exceeding the prescribed amount in value.

[8] In conclusion, this appeal properly lies to this court and not to the Divisional Court.

[9] The motion is dismissed with no order as to costs.

“Gloria Epstein J.A.”

“S.E. Pepall J.A.”

“M. Tulloch J.A.”