CITATION: Niagara Police Services Board v. Mylabathula, 2024 ONSC 3336
DIVISIONAL COURT FILE NO.: 49/23 and 50/23
DATE: 20240611
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: The Regional Municipality of Niagara Police Services Board, Appellant/Defendant
(Canada Border Services Agency and The Attorney General of Canada are non-responding/observing parties)
AND: Santha Kumar Mylabathula, the estate of Sulochana Shanthakumar by her estate trustee, Santha Kumar Mylabathula, Respondents/Plaintiffs
AND: Canadian Association of Chiefs of Police, Ontario Association of Chiefs of Police and South Asian Legal Clinic of Ontario & Black Legal Action Centre, Intervenors
BEFORE: Heeney, Backhouse and Fraser JJ.
COUNSEL: Rafal Szymanski for the Appellant, Peter Callahan for the Respondents, Derek Edwards for the Canada Boarder Services Agency, Karen Watt for the Attorney General of Canada, Jessica Barrow for the Canadian Association of Chiefs of Police, Ian Johnstone for the Ontario Association of Chiefs of Police, Mani Kakkar and Amna Farooqi for the South Asian Legal Clinic of Ontario & Black Legal Action Centre
HEARD in Brampton by video conference on June 10, 2024
Endorsement
Backhouse J.
[1] The Regional Municipality of Niagara Police Services Board (the “Appellant”) appeals from the trial judgment of Justice Agarwal dated July 18, 2023.
[2] The Respondents were husband and wife. They commenced separate actions relating to their July 4, 2012 arrest when returning from New York State across the Lewiston-Queenston Bridge in Niagara-on-the-Lake. The Respondents sued three defendants, the Attorney General of Canada on behalf of the RCMP (the “RCMP”), the Canada Border Services Agency (“CBSA”), and the Appellant.
[3] Judgment was granted against the RCMP and the Appellant. The RCMP was ordered to pay each Respondent $25,000 in general damages and $5,000 in punitive damages plus pre-judgment interest. The Appellant was ordered to pay each Respondent $15,000 in general damages and $5,000 in punitive damages plus prejudgment interest. Judgment would also have been granted against the CBSA, but the actions against that defendant were found to be time barred pursuant to the Customs Act. The Appellant appeals from the finding of liability in both actions. The RCMP has satisfied the Judgment against it and has not appealed. Although the trial judge made adverse findings against the CBSA, the action was ultimately dismissed against that defendant and there was no Judgment for the CBSA to appeal.
[4] Prior to the hearing date set for this appeal, the panel notified counsel on June 4, 2024 to be prepared at the outset of the hearing to address whether the Divisional Court has jurisdiction under s.19(1.2) of the Courts of Justice Act (“CJA”) to hear this appeal, in light of Grammatico v. Medeiros Estate, 2012 CarswellOnt 14644, 2012 ONSC 6518, 225 A.CW.S.(3d) 74.
[5] The Appellant argued that the appeal comes within the jurisdiction of the Divisional Court for the following reasons. The Appellant is the only appellant on this appeal, against whom an award was made to each Respondent in separate actions of $20,000 plus pre-judgment interest estimated at approximately $10,000. As there are two separate actions which were heard at the same time, it is argued that the aggregate sums awarded to each Respondent do not exceed $50,000.
[6] On March 17, 2023, Justice Barnes consolidated the two actions, effective “forthwith”. At paragraph 36 of the Reasons for Judgment, Justice Agarwal states:
In March 23, 2023, the court ordered that the actions be consolidated. No consolidated pleadings were filed. Instead, the actions were heard at the same time.
Analysis
[7] Section 6(1)(b) of the CJA gives the Court of Appeal jurisdiction over all appeals from a final order of a judge of the Superior Court of Justice, except an order referred to in s. 19(1)(a) of the CJA or an order from which an appeal lies to the Divisional Court under another Act:
- (1) An appeal lies to the Court of Appeal from,
(b) a final order of a judge of the Superior Court of Justice, except an order referred to in clause 19(1)(a) or an order from which an appeal lies to the Divisional Court under another Act.
[8] Sections 19(1)(a) and 19(1.2) of the CJA describe the classes of Superior Court final orders from which an appeal lies to the Divisional Court under the CJA:
- (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 the subsections (1.1) and (1.2).
(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 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).
[9] In Grammatico v. Medeiros Estate, 2012 CarswellOnt 14644, 2012 ONSC 6518, 225 A.CW.S.(3d) 74, Eberhard J. found that the Divisional Court lacked jurisdiction where the amount in issue on appeal of an interest component relating to costs was under $50,000, but the combined substantive amount of the judgment along with the amount of costs in issue on the appeal well exceeded $50,000. The court stated the following, at paras. 10 and 11:
It appears that counsel has chosen to appeal only one aspect of the decision of DiTomaso J. Jurisdiction would become unpredictable if the choice of forum is based on the position of appellant counsel as to the aspect of the appealed case at issue. One could contemplate many judgments where different aspects of the claim resulted in amounts which, when added together, totalled an amount greater than the Divisional Court jurisdiction. If, by picking and choosing which aspects of the claim are at issue, counsel could thereby fix the jurisdiction for appeal, the simplicity of the rule would be lost. Add to that the possibility that the Respondent may also have different issues which may or may not be within Divisional Court monetary jurisdiction. It simply becomes too unpredictable to manage.
Accordingly, the substance of the Plaintiff (Respondent) party’s motion is sound. The jurisdiction for appeal must be determined by the aggregate of the sums awarded. [emphasis added]
[10] In Hanish v. McKean, 2014 ONCA 698, the Court of Appeal considered whether the meaning of “final order” as it appears in ss. 6 and 19 of the CJA can properly be read as referring to the particular term(s) of a final order that is/are under appeal, and held that “final order” must be read as meaning the entire final order, irrespective of what portions of the final order are under appeal.
[11] In paragraph 29 of Hanish, the court also stated:
So, for example, in McManus v. Feldman Investments Ltd., [2003] O.J. No. 5762, this court determined that it had jurisdiction over an appeal where the appeal related solely to punitive damages quantified at $16,750, but the total amount of the judgment was $148,143.
[12] Even if we were to accept the Appellant’s argument that there were two separate actions notwithstanding the order for consolidation that was made and the one judgment that was issued, the total amount awarded for damages in each action was $50,000 plus prejudgment interest (approximating a further $10,000 in each action), which means that the appeal of each action considered separately still exceeds the jurisdiction of the Divisional Court.
[13] Accordingly, I conclude that the Divisional Court lacks jurisdiction to hear this appeal. Under s.110 of the CJA,“where a proceeding or a step in a proceeding is brought or taken before the wrong court, judge or officer, it may be transferred or adjourned to the proper court, judge or officer.”
[14] This appeal is transferred to the Court of Appeal. The Respondents are entitled to their costs thrown away in the amount of $1,500.
Backhouse J.
I agree _______________________________
Heeney J.
I agree _______________________________
Fraser J.
Date: June 11, 2024