COURT OF APPEAL FOR ONTARIO

CITATION: Saleh v. Nebel, 2016 ONCA 948

DATE: 20161216

DOCKET: C60078 and C60066

Cronk, Juriansz and Roberts JJ.A.

BETWEEN

DOCKET: C60078

Aiyub Saleh

Appellant

(Respondent by Cross-Appeal)

and

Ludwig Nebel

Respondent

(Appellant by Cross-Appeal)

AND BETWEEN

DOCKET: C60066

Aiyub Saleh

Appellant

and

Ludwig Nebel

Respondent

Ryan M. Naimark and Michael Warfe, for the appellant/respondent by cross-appeal

Alan L. Rachlin, Diana Romano Reid, J. Thomas Curry and Constanza Pauchulo, for the respondent/appellant by cross-appeal

Heard: December 13, 2016

On appeal from the judgment of Justice F.L. Myers of the Superior Court of Justice, sitting with a jury, dated February 2, 2015, with reasons reported at 2015 ONSC 747, and on appeal and cross-appeal from Justice Myers’ costs order dated June 8, 2015, with reasons reported at 2015 ONSC 3680.

ENDORSEMENT

[1] The appellant appeals from the judgment of F.L. Myers J. of the Superior Court of Justice, sitting with a jury, dated February 2, 2015 and, if leave is granted, from the trial judge’s costs order dated June 8, 2015. The respondent, for his part, seeks leave to cross-appeal from the trial judge’s ruling that no costs should be awarded to him in the circumstances of this case.

[2] At the outset of oral argument before this court, the panel requested submissions from counsel on this court’s jurisdiction to hear the appeal and cross-appeal. Having considered those helpful submissions, we concluded, for reasons to follow, that the appeal and related cross-appeal properly lie to the Divisional Court. These are those reasons.

[3] In brief, the appellant sued the respondent for damages for personal injuries allegedly suffered by the appellant in a 2007 car accident admittedly caused by the respondent. The jury assessed the appellant’s general damages at $30,000 and his other claimed damages at zero. The trial judge concluded that the appellant had failed to prove the existence of the first of his alleged injuries and that the second injury was caused by the accident.

[4] The appellant having failed to establish the existence of his injuries or causation, the trial judge held, in effect, that it was unnecessary to determine whether the appellant’s claim was barred by the statutory immunity threshold set out in s. 267.5(5)(b) of the Insurance Act, R.S.O. 1990, c. I.8, and he dismissed the action. His judgment contains no declaratory relief regarding the threshold.

[5] In these particular circumstances, we conclude the appeal lies to the Divisional Court under ss. 19(1.2) of the Courts of Justice Act, R.S.O. 1990 c. C.43 (“CJA”). See CJA, s. 19(1.2)(d); Harte-Eichmanis v. Fernandes, 2012 ONCA 266; McGrath v. Woodrow (2001), 2001 24163 (ON CA), 52 O.R. (3d) 732 (C.A.); Sandu v. Fairmont Hotels Inc., 2015 ONCA 611. Further, on the authority of this court’s decision in Watson v. Boundy (2000), 2000 2502 (ON CA), 49 O.R. (3d) 134, 130 O.A.C. 328 and related cases, the proposed cross-appeal must follow the main appeal. None of the cases relied on by the parties persuades us to the contrary.

[6] We therefore transfer the appeal and cross-appeal to the Divisional Court under s. 110(1) of the CJA. As the jurisdictional issues were raised by this court on its own motion, we make no award of the thrown away costs of the proceedings in this court.

“E.A. Cronk J.A.”

“R.G. Juriansz J.A.”

“R.B. Roberts J.A.”