CITATION: Duesling v. Cormier, 2017 ONSC 5261

COURT FILE NO.: DC-17-830

DATE: 2017-09-05

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Daniel John Duesling, Appellant

A N D:

Andrea Cormier, Respondent

BEFORE: The Honourable Mr. Justice A. J. Goodman

COUNSEL: Brent C. Balmer, for the Appellant

Alex Toolsie, for the Respondent

HEARD: August 10 and 18, 2017

E N D O R S E M E N T

[1] The appellant brought a motion for leave to extend the time for the filing of the Appeal. For a variety of reasons, the appeal had been delayed and not been perfected in time. The respondent raised various issues opposing the relief sought and why leave ought not to be granted.

[2] At the end of oral submissions, I granted leave to extend the time to perfect the appeal to the Divisional Court, with terms.

[3] However, during the course of this motion, a threshold issue arose involving a jurisdictional question as to whether the appeal in this case properly lies to the Divisional Court or to the Court of Appeal. The determination of the correct forum is premised on an interpretation of s. 19(1.2) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (“CJA”).

[4] As this specific jurisdictional issue had not been explicitly addressed by any court in Ontario, the parties were advised that written reasons on this discrete issue would follow. These are my reasons.

Issues:

[5] In an appeal of a final order of a Superior Court judge, what is the definition and interpretation of “single payment” with respect to how the term is used in s. 19(1.2) of the CJA?

[6] Would Campbell J.’s order in this case be considered a single payment? To what forum does the correct jurisdiction lie for this appeal?

Applicable Statute:

Courts of Justice Act, s. 19(1.2)

[7] 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).

Discussion:

[8] For the purposes of this analysis, amounts are less than $50,000 (or $25,000 as the case may be). The term “single payment” has not been defined in the statute, rules, annotations or the relevant jurisprudence. Indeed, the CJA does not specifically define the term “single payment”. It appears that various motions courts, as well as the Court of Appeal do not appear to have explicitly addressed the question of how to consider a situation where there may be “multiple” instances of “single payments” contained within the same order and to what appropriate forum an appeal may lie.

[9] That being said, in Siahbazi v. Rastegar, 2012 ONSC 2384 at para. 2, the court actually used the term “lump sum payment” interchangeably with “single payment”. It stated: “When lump sum payments are less than $50,000 and periodic payments for twelve months are also less than $50,000, the Divisional Court has jurisdiction even if total of all those payments exceeds $50,000.”

[10] In Siahbazi, there were three provisions in the final order that were being appealed: (1) retroactive child support of $33,016.50; (2) retroactive spousal support of $14,808; and (3) ongoing spousal support. The court concluded that because the total amount of the two lump sum payments (retroactive child support and retroactive spousal support) did not exceed $50,000, the Divisional Court had jurisdiction. This means that within the classification of “single payment”, the court included both lump sum payments together. It clarified that the court has jurisdiction even if the total of all three payments together exceed $50,000 because the “or” between the subsections of s. 19(1.2) are disjunctive.

[11] This interchangeable use of the term “lump sum award” with “single payment” was also used in Waye v. Cook, 2015 ONCA 425.

[12] The Court of Appeal considered the issue of periodic payments in several cases: Sepe v. Monteleone (2006), 78 O.R. (3d); Mohammad Estate v. Tucci, 2009 ONCA 554.

[13] In Mohammad Estate, the Court of Appeal appeared not to have restricted “single payments” to just one payment of one kind. The court stated at para. 23:

The subsections of s. 19 are, as this court noted in Sepe, disjunctive and they must be read and interpreted in that way. However, within each subsection, all of the claims whether allowed or dismissed and whether claimed by one party or more than one party are to be added together in order to apply s. 19(1)(a).

[14] This could suggest that multiple amounts under subsection 19(1.2)(a), which are categorized as a “single payment” are to be added together to see if they exceed the $50,000 threshold.

[15] In other words, it appears that the order can address more than one “single payment” as long as it does not surpass the monetary threshold. Moreover, it can be interpreted that if a court is to look at the total amount assessed by the trial judge for multiple parties, then it could be inferred that the same can be done for the total amount of different single payment awards ordered to one party.

[16] In Eustace v. Eustace, 2017 ONSC 4814, the court dealt with the question of whether a cost order is outside the jurisdiction of the Divisional Court since s. 19(1.2) of the CJA mandates that the issue of jurisdiction should be determined “exclusive of costs”. At para. 8, the court stated that:

The statutory framework in s. 19(1.2)(a) has these main components: 1) the Order under appeal must be for a single payment (a payment order); 2) the quantum of the Order must be $50,000 or less; and 3) the quantum of any cost award cannot be included in the calculation. The statutory framework prohibits the intermingling of a payment order with a cost order in determining quantum of the Order under appeal. (See also Marcus Direct Marketing Inc. v M&K Plastic Products Ltd., (1989) O.J. No. 467 (C.A.).

[17] The court held that where the payment order under appeal is a cost order, the cost order becomes the “order for a single payment” and the quantum of the cost order under appeal is relevant and determinative. The statutory prohibition against intermingling a cost order and a payment order for the purposes of determining the quantum was held to not apply where the cost order itself is the subject of the appeal. The “single payment” order under appeal was a cost order for $20,000 and therefore the Divisional Court had jurisdiction.

[18] While the latter case does not explicitly speak to the question at hand, it may still be reasonable to infer that the court was understanding a single payment to be any order for a payment [note the use of “(a payment order)” in its statutory framework analysis]. In Eustace, the court held that the cost order could now be seen as a payment order. Using this line of reasoning, then a payment order which includes two different awards could perhaps still be seen as an “order for a single payment”.

Statutory Interpretation Analysis:

[19] In my opinion, the consideration of a statutory interpretation analysis seems to coincide with how the case law defines “single payment”; as any lump sum payments as opposed to periodic payments.

[20] The case of Rizzo & Rizzo Shoes Ltd. Re, 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) is one of the leading authorities as to how to approach the task of statutory interpretation and has been cited more than 3,000 times by various courts at all levels: (For example, Rooney v. ArcelorMittal S.A., 2016 ONCA 630 at para. 11). In Rizzo at para. 21, Iacobucci J. endorsed Driedger’s “modern principle” of statutory interpretation. His oft-quoted statement of the law is:

Today there is only one principle or approach, namely the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[21] The guidance that Rizzo provides is especially important in circumstances where the plain meaning of a provision appears to conflict with its underlying statutory purpose: Rooney, at para. 14. In Rizzo, at para. 21, Iacobucci J. repudiated the view that statutory interpretation could be “founded on the wording of the legislation alone.” This appears to be applicable in the case here.

[22] The plain meaning of the word “single” may be determined by referring to dictionaries as they “reflect linguistic usage applicable in a community at a given time.”

[23] The Merriam-Webster Dictionary defines “single” as:

(1) Consisting of having only one part, feature, or portion.

(2) Consisting of one as opposed to or in contrast with many.

(3) Consisting of only one in number.

(4) Consisting of a separate unique whole.

[24] The Oxford Dictionary defines “single” as:

(1) Only one; not of several.

(2) Consisting of one part.

[25] From looking at these dictionary definitions, it may be inferred that the plain meaning of the provision, “for a single payment of not more than $50,000” refers to a single (one) payment.

[26] However, when we look at the legislative intent of s. 19(1.2) of the CJA, as articulated by the Ontario Court of Appeal in Sepe, there appears to be a possible disconnect. In Sepe, the court addressed the question of whether the “or” between the subsections was disjunctive and whether each subsection was to be looked at individually or in combination to determine if the amount of judgment or dismissed claim was under the threshold amount. In its statutory interpretation exercise, the appellate court stated in para 6. that:

In our view, the purpose of s. 19(1)(a) is to define an easily applied cut-off for litigants to determine the proper appeal route in any particular case. The line that was drawn by the legislator is the monetary amount of a judgment or dismissed claim of $25,000. It is merely a mechanism for directing appeals involving less than the defined amount to one court, and the balance to the other.

[27] Of course, the amount for an appeal to the Divisional Court was amended to $50,000.00 in a subsequent amendment to the statute, but the intent of the legislation presumably remains the same.

[28] What appears to be important to the legislator’s intent is not that the Divisional Court may only hear cases where there has only been one type of single payment, but that the amount of any single payment(s) within the same order is under the ceiling amount.

[29] Moreover, the Court of Appeal has held that the Court must add together separate periodic payments to see if they fall under the threshold amount. This further suggests that it would be anomalous to not do the same for single payments.

[30] Therefore, the manner in which the existing case law appears to have been using the term “single payment” (lump sums as opposed to periodic payments) coincides with this statutory interpretation analysis.

Application to this case:

[31] From my review, the jurisprudence suggests that a “single payment” refers to all payments that are to be made in a single instance (or a lump sum) as opposed to in a periodic manner. In other words, “single payment” does not seem to refer to just one payment of one kind that is awarded in the order.

[32] In this case, the specific payments ordered by Campbell J. that are of specific concern for this jurisdictional question are found at para. 3 of his February 17, 2017 decision as follows:

In addition to the Guideline amount of child support owing, the Respondent Father shall pay to the Applicant Mother 1/3 of each of:

(a) Jamie Lee Duesling’s s. 7 education expenses for 2 years totalling $22,553.70; specifically he shall pay $7,517.90, which amount is payable forthwith; and

(b) Damya Skye Duesling’s presently accumulated s. 7 education expenses for both Georgian College and University of Guelph and her loan of $7,000, totalling ($6,283.92 + $6,650 + $7,000) $19,933.92; specifically he shall pay $6,644.64, which is also payable forthwith.

[33] Under the same paragraph there are two lump sum or single amounts due and owing, each with respect to the two children of the marriage.

[34] While there are technically two different payments with respect to education expenses the applicant has been ordered to make, the jurisprudence and the statutory interpretation definition would suggest that the total amount of the education expenses is considered a “single payment” for the purposes of s. 19 (1.2) of the CJA. That total is $14,162.54 ($7,517.90 + $6,644.64).

[35] In this case, as both payments are within the same order and refer to a single payment on account of each child and both amounts are under the $50,000 threshold, it seems to me that the Divisional Court has jurisdiction over the matter under appeal.

Conclusion:

[36] Given the aforementioned analysis, I conclude that the Divisional Court does have jurisdiction to hear this appeal.

A.J. Goodman J.

DATE: September 5, 2017