When to file at the Divisional Court

• Under s. 19(1)(a) of the Courts of Justice Act (“CJA”), 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).^[1] Otherwise, an appeal from a final order of the Superior Court lies to the Court of Appeal under s. 6(1)(b).^[2]
  
• The Divisional Court is a creature of statute. Where jurisdiction is not conferred on the Divisional court expressly, it does not exist.^[3] Its jurisdiction is contained in s. 19 of the CJA.^[4]
  
• Section 19 sets out three exceptions to the general rule that a final order of a judge of the Superior Court of Justice lies to the Court of Appeal. All of the exceptions under section 19(1)(a) relate to the payment of money, whether by ordering it to be paid or by dismissing a claim for its payment.^[5]
  
• Section 19(1.2)^[6] relates to appeals filed on or after October 1, 2007 providing:19(1.2) If the notice of appeal is filed on or after October 1, 2007, clause (1)
  
  1. Applies in respect of a final order,(a)for a single payment of not more than $50,000, exclusive of costs;
  2. 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;
  3. Dismissing a claim for an amount that is not more than the amount set out in clause (a) or (b); or
  4. 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).^[7]
     
• 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. When ss. 6(1), 6(2) and 19 are read in combination, the scheme of these sections is to give the Court of Appeal default jurisdiction over appeals from final orders of the Superior Court of Justice – subject only to the exceptions created by s. 19 of the CJA and other specific statutory provisions.^[8]
  
• Section 6(2) underlines the intention to give the Court of Appeal default jurisdiction by providing that, where more than one court has jurisdiction over appeals in the same proceeding, the Court of Appeal may assume jurisdiction over all appeals.^[9]
  
• “Final order,” as it appears in ss. 6 and 19 of the CJA, must be read as meaning the entire final order, irrespective of what portions of the final order are under appeal.^[10] Otherwise, the proper appeal route from an order could change, depending on the terms of the order and the grounds of the appeal or cross-appeal.^[11]

Non-monetary orders

• The Divisional Court does not have jurisdiction over an appeal from the non-monetary orders;^[12] such as an order granting a declaration or equitable relief and appeals of these orders lie to the Court of Appeal.^[13]
  
• Examples of non-monetary orders are:
  
  1. An order to provide vacant possession of a property. Even if coupled with an order for a payment of money less than $50,0000 s. 19(1.2) does not give the Divisional Court jurisdiction over an eviction order.^[14]
  2. An order to deliver possession of personal property.^[15]
• Given the order must be viewed as a whole, if any part of the order grants non-monetary relief, the appeal of that order is to the Court of Appeal.
  

Sections 19(1.2) (a) and (b) – Orders for payment of monies

• 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.^[16]
  
• The Order records the claims allowed and the claims that have been dismissed and is the key document to which reference must be made in determining the applicability or not of s. 19 of the CJA.^[17]
  
• Although the subsections within s. 19 (i.e. 19 (a), 19 (b), 19 (c), and 19 (d)) are disjunctive, all of the claims whether allowed or dismissed and whether claimed by one party or more than one party within each subsection are to be added together in order to apply s. 19(1)(a).^[18]
  
• All lump sum payments (except orders for costs) are added up to ascertain whether the orders for lump sum payments exceed the Divisional Court jurisdiction pursuant to s. 19(1.2)(a) (for a single payment of not more than $50,000, exclusive of costs).
  
• If on its own an order for costs reaches the $50,000 threshold, then the Divisional Court does not have jurisdiction over the appeal of the Order. Courts consider a costs order to be an “order for a single payment” and the quantum of the costs under appeal is relevant and determinative. The statutory prohibition against intermingling a cost order and a payment order for the purposes of determining the Divisional Court threshold does not apply where the cost order itself is the subject of the appeal.^[19] Note if only the costs order is being appealed then leave to appeal is required under s. 133(b) of the CJA.
  
• For periodic all payments, all periodic payments are added up, and if the total amount of the periodic payments for the 12-month period after the date of the Order exceeds $50,000, then the appeal lies to the Court of Appeal.
  

Sections 19(1.2) (c) and (d) – Orders for dismissing the Appellant’s claims

• Sections 19(1.2)(c) and (d) relate to a final order dismissing a claim. Under s. 19(1.2)(c), the Divisional Court only has jurisdiction over an appeal from a final order dismissing a claim or claims for $50,000 or less.^[20]
  
• Where the Appellant has their claim(s) exceeding $50,000 dismissed, the Divisional Court does not have jurisdiction to hear the appeal of that dismissal under s. 19(1.2)(c).^[21]
  
• 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”.^[22]
  
• Where the claim was more than $50,000, but the trier or fact, be it either the judge or the jury, make no determination as to the amount he/she/they would have awarded if the claim had been allowed, i.e. the damages are remain to be determined, but 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).^[23]
  
• This is the case even if the trier of fact makes a finding of liability but did not award damages, whether because they were not proven or otherwise. S. 19(1.2)(d) cannot be satisfied where a claim is dismissed because damages have not been proven.^[24]

References