CITATION: Pullano v. Hinder 2021 ONSC 4714
DIVISIONAL COURT FILE NO.: DC-591-20 DATE: 20210713
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Lococo, Emery and Kristjanson JJ.
BETWEEN:
Anthony Pullano
William V. Reid, for the Plaintiff (Appellant)
Plaintiff (Appellant)
– and –
STEVEN HINDER and MAGNA INTERNATIONAL INC. and STRONACH CONSULTING CORP.
Deborah Berlach, counsel for the Defendants (Respondents)
Defendants (Respondents)
HEARD at Oshawa by video conference: June 29, 2021
R.A. Lococo J.
REASONS FOR DECISION
I. Introduction
[1] The plaintiff Anthony Pullano appeals from the judgment of Justice John R. McCarthy of the Superior Court of Justice dated April 15, 2019, following a jury trial.
[2] Following counsel’s submissions on the threshold issue of jurisdiction, the parties were advised of the court’s decision (with written reasons to follow) that the Divisional Court does not have jurisdiction to hear the appeal. After further submissions, the parties were advised that the appeal is being transferred to the Court of Appeal. These are the reasons for those decisions.
II. Background
[3] The action arose from the defendant Steven Hinder’s alleged battery of the plaintiff. The corporate defendants were alleged to be vicariously liable for Mr. Hinder’s actions. Mr. Hinder counterclaimed, alleging defamation.
[4] In response to jury questions drafted jointly by the parties, the jury determined that (i) Mr. Hinder punched the plaintiff, (ii) the punch did not cause any physical, emotional or psychological injury to the plaintiff, and (iii) the plaintiff was not entitled to any damages. On the counterclaim for defamation, the jury found in Mr. Hinder’s favour and awarded general damages of $50,000.
[5] Following the jury’s verdict, the parties’ counsel provided written submissions as to the form and content of the judgment, including whether the judgment should address the following matters (as the plaintiff requested): (a) an award of nominal damages (of one dollar) to the plaintiff for battery; (b) vicarious liability of the corporate defendants for Mr. Hinder’s conduct, and (c) a costs award in the plaintiff’s action in his favour. For written reasons dated April 15, 2019 (reported at 2019 ONSC 2362), the trial judge decided that the judgment would not address those matters. In the judgment, the trial judge (i) dismissed the plaintiff’s claims against all defendants, (ii) ordered that Mr. Hinder recover general damages of $50,000 from the plaintiff for defamation and (ii) awarded the defendants costs of the action (including the counterclaim) in the amount of $174,509.63.
[6] The plaintiff appeals the court’s judgment relating the plaintiff’s action against the defendants. He is not appealing the judgment with respect to the counterclaim for defamation.
III. Jurisdiction
[7] The plaintiff argues that the Divisional Court has jurisdiction to hear his appeal under ss. 19(1)(a) and (1.2) of the Courts of Justice Act, R.S.O. 1990, c. C.43. For the reasons below, I disagree.
[8] Under s. 19(1)(a), the Divisional Court has jurisdiction over an appeal from a final order of the Superior Court under ss. 19(1.1) and 19(1.2). Otherwise, an appeal from a final order of the Superior Court lies to the Court of Appeal under s. 6(1)(b).
[9] Section 19(1.1), which relates to appeals filed before October 1, 2007, has no application in this case. Section 19(1.2) relates to appeals filed on or after October 1, 2007, as in this case. Section 19(1.2) provides as follows:
19(1.2) If the notice of appeal is filed on or after October 1, 2007, clause (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 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).
[10] The Divisional Court does not have jurisdiction over this appeal under any of the provisions of s. 19(1.2).
[11] Sections 19(1.2)(a) and (b) relate to appeals from a final order for a monetary amount, setting $50,000 as the cut-off for determining whether the Divisional Court has jurisdiction. Those two provisions have no application in this case, since no monetary amount was awarded in the plaintiff’s action.
[12] Sections 19(1.2)(c) and (d) relate to a final order dismissing a claim. Under s. 19(1.2)(c), the Divisional Court has jurisdiction over an appeal from a final order dismissing a claim for $50,000 or less. In the Statement of Claim, the plaintiff claimed general damages of $500,000 and punitive damages of $1,000,000. Those amounts exceed $50,000. Therefore, the Divisional Court does not have jurisdiction to hear this appeal under s. 19(1.2)(c).
[13] Under ss. 19(1.2)(d), the Divisional Court has jurisdiction over an appeal from a final order dismissing a claim for more than $50,000, but only if the trier of fact “indicates that if the claim had been allowed the amount awarded would have been not more than [$50,000]”. The plaintiff’s claim was more than $50,000, but the jury made no determination (nor was it asked a question) as to the amount it would have awarded if the claim had been allowed. Where the damages are indeterminate (that is, remain to be determined) and the claim for damages is for more than $50,000, the Divisional Court does not have jurisdiction to hear the appeal under s. 19(1.2)(d): see Hearn v. McLeod Estate, 2019 ONCA 682, 439 D.L.R. (4th) 217, at paras. 11 and 12; Mars v. Canada Inc. v. Bemco Cash & Carry Inc., 2017 ONSC 3399, 146 C.P.R (4th) 263 (Div. Ct.), at para. 14.
[14] I have some difficulty addressing the plaintiff’s position relating to the basis for this court’s jurisdiction over the appeal, since the submissions of plaintiffs’ counsel on this issue provided somewhat of a moving target.
[15] One of the substantive issues to be determined in the appeal is whether the judgment should have included an award of nominal damages (one dollar) to the plaintiff for battery based on the jury’s finding (in answer to the first jury question) that Mr. Hinder punched the plaintiff. However, the judgment as issued did not award any amount to the plaintiff. Therefore, plaintiff’s counsel properly conceded that ss. 19(1.2)(a) and (b) do not apply, since the judgment relating to the plaintiff’s action does not include a monetary award.
[16] In his oral submissions, plaintiff’s counsel relied on ss. 19(1.2)(c) and (d) as providing the Divisional Court with jurisdiction over the appeal. He directed the court to the Court of Appeal decision Harte-Eichmanis v. Fernandes, 2012 ONCA 266, 16 R.F.L.(7th) 1. That decision involved an appeal from a judgment following a jury trial in motor vehicle litigation on the issue of damages alone, the defendant having admitted liability. The jury awarded the injured plaintiff general damages of $40,000 (being $10,000 net of the statutory deductible) and awarded no damages to her spouse under the Family Law Act, R.S.O. 1990, c. F.3. In these circumstances, the Court of Appeal found that the Divisional Court had jurisdiction under s. 19(1.2)(a) because the order was for the payment of less than $50,000: see Harte-Eichmanis, at para. 15. The court also noted (at para. 16) that the amount the injured party claimed (which was greater than $50,000) was not relevant in the determination of jurisdiction in these circumstances.
[17] As well, in its comments about the general scheme of s. 19(1.2), the court in Harte-Eichmanis noted that the Divisional Court has jurisdiction under ss. 19(1.2)(c) or (d) in the following circumstances: (i) “if the amount of a claim is not determined or is assessed at less than $50,000” (at para. 13); and (ii) “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” (at para. 14), citing Sherman v. 21 Degree Heating and Air Conditioning Inc. (2008), 77 C.L.R.(3d) 289 (Ont. Div. Ct.).
[18] Based on the court’s reasons in Harte-Eichmanis, plaintiff’s counsel calls into question whether it is appropriate to rely on the amount claimed in the Statement of Claim to determine whether ss. 19(1.2)(c) or (d) apply in this case. I see no basis for that concern. That is what the court did in Sherman, at paras. 1 and 4, a case cited with approval in Harte-Eichmanis.
[19] Sherman was an appeal from the trial judge’s decision, dismissing the plaintiffs’ claim for damages for breach of contract and negligence. In the statement of claim, the plaintiffs had initially claimed an amount in excess of the $25,000 monetary limit in s. 19(1.1) for appeals filed before October 1, 2007. The trial judge found that the plaintiffs had established the defendants’ liability but failed to prove any damages. On appeal, the Divisional Court found (at para. 4) that it did not have jurisdiction under the equivalent of s. 19(1.2)(c), given that the plaintiffs’ initial claim exceeded the monetary limit. The court also found (at paras. 4-7) that the equivalent of s. 19(1.2)(d) did not apply to provide jurisdiction to the Divisional Court. The court reasoned that while the amount claimed exceeded the monetary limit, the second branch of that provision (requiring that the trier of fact indicate that the award would have been less than the monetary limit if the claim had been allowed) was not satisfied. The court also noted (at para. 5) that the latter requirement could not be satisfied “where the claim is dismissed because damages have not been proven” (emphasis in original).
[20] In the appeal before the court, as in Sherman, s. 19(1.2)(c) does not apply since the plaintiff’s initial claim exceeded the applicable monetary limit. Section 19(1.2)(d) does not apply since the trier of fact made no determination (nor was it asked a question) as to the amount it would have awarded if the claim had been allowed. That result is consistent with the Court of Appeal’s decision in Hearn (relying on the decision of this court in Mars), which confirmed that where damages are indeterminate and the claim is for more than $50,000, the Divisional Court does not have jurisdiction to hear the appeal under s. 19(1.2)(d). Contrary to the plaintiff’s position, I see nothing in Harte-Eichmanis to indicate that the Divisional Court has jurisdiction under either of ss. 19(1.2)(c) or (d).
[21] One of the substantive issues in this appeal is whether the trial judge erred in law by refusing to include in the judgment an award of nominal damages (one dollar) to the plaintiff for battery. The plaintiff argues that given the jury’s finding that Mr. Hinder punched the plaintiff, the trial judge should have done so had he properly applied the legal principles relating to the tort of battery set out by the Supreme Court of Canada in Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551. That reasoning supports the conclusion that the Divisional Court has jurisdiction over this appeal under s. 19(1.2)(d), according to the plaintiff.
[22] I do not agree. In response to the jury questions the parties agreed on, the jury found that the plaintiff was not entitled to damages in any amount, which is reflected in the judgment. In these circumstances, to conclude that the plaintiff would have been entitled to nominal damages of one dollar in order to establish jurisdiction for the Divisional Court to hear this appeal under s. 19(1.2)(d) would be an error in principle.
[23] Accordingly, pursuant to s. 6(1)(b) of the Courts of Justice Act, the appeal in this case lies to the Court of Appeal, and not the Divisional Court.
IV. Transfer to the Court of Appeal
[24] Where an appeal is brought in the wrong court, the court has the authority to transfer the appeal to the proper court: see Courts of Justice Act, s. 110(1). As Paciocco J.A. states in Bernard v. Fuhgeh, 2020 ONCA 529, at para. 15, whether to transfer the appeal is a matter of discretion, taking into account the following factors set out in Dunnington v. 656956 Ontario Ltd. (1992), 1991 7107 (ON SC), 9 O.R. (3d) 124 (Div. Ct.):
a. the merits of the appeal;
b. whether the respondent will suffer undue prejudice as a result of further delay while the appeal is waiting to be heard; and
c. whether the appellant moved expeditiously after becoming aware that jurisdiction was in dispute.
[25] Applying those criteria, the defendants argue that this court should exercise its discretion against transferring the appeal to the Court of Appeal and instead dismiss the appeal for want of jurisdiction. The defendants say that their counsel raised the jurisdiction issue shortly after the appeal was filed two years ago and urged the plaintiff to bring a motion seeking directions on the jurisdiction issue, but no such action was taken.
[26] The defendants also argue that there was prejudice to them resulting from the delay. In particular, the defendants say they have refrained from seeking payment on the amount recovered on the counterclaim, given the plaintiff’s appeal seeking a substantial costs award, to be set off against the amounts due to the defendants under the judgment.
[27] At the court’s direction, defendants’ counsel did not address the merits of the appeal, which were not the subject of detailed consideration at the hearing, given the focus on the threshold jurisdiction issue.
[28] In all the circumstances, I concluded that the appeal should be transferred to the Court of Appeal rather than dismissed for want of jurisdiction. The parties’ counsel had a reasonably based difference of opinion on the jurisdiction issue. The plaintiff did not take steps to bring the issue before the court for determination in the past two years, but the same may be said about the defendants. In addition, I see no significant prejudice to the defendants from the delay. The required record for the appeal is already assembled. The defendants chose not to enforce the judgment in their favour, even though free to do so. Finally, the plaintiff’s appeal on its face is not so lacking in probity that its merits would be a significant factor in determining whether the appeal should be transferred to the Court of Appeal.
[29] Accordingly, the appeal is transferred to the Court of Appeal, with the costs of today being reserved to that court.
___________________________ Lococo J.
I agree
___________________________ Emery J.
I agree
Kristjanson J.
Date of Release: July 13, 2021
CITATION: Pullano v. Hinder 2021 ONSC 4714
DIVISIONAL COURT FILE NO.: DC-591-20 DATE: 20210713
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Emery and Kristjanson JJ.
BETWEEN:
ANTHONY PULLANO
Plaintiff (Appellant)
– and –
STEVEN HINDER and MAGNA INTERNATIONAL INC. and STRONACH CONSULTING CORP.
Defendants (Respondents)
REASONS FOR DECISION
R.A. Lococo J.
Date of Release: July 13, 2021