



COURT OF APPEAL FOR ONTARIO

CITATION:

Harte-Eichmanis v. Fernandes, 2012
    ONCA 266

DATE: 20120426

DOCKET: C52497

Doherty and LaForme JJ.A. and Turnbull J. (
ad
    hoc
)

BETWEEN

Sandra Harte-Eichmanis
    and

Peter
    Eichmanis

Appellants

and

Carmen Fernandes

Respondent

John J. Adair and Gordon McGuire, for the appellant

William G. Woodward, for the respondent

Heard: April 3, 2012

On appeal from the order of Justice Barry Matheson of the
    Superior Court of Justice, sitting with a jury, dated June 24, 2010.

ENDORSEMENT

[1]

The appellant,
Sandra
    Harte-Eichmanis, was in a motor vehicle accident with the respondent in October
    2003.  The respondent admitted liability and a trial proceeded before a judge
    and jury on the issue of damages alone.

[2]

In the action Sandra
    Harte-Eichmanis claimed general damages in the amount of $500,000; Peter
    Eichmanis claimed damages of $75,000 pursuant to s. 61 of the
Family
    Law Act,
R.S.O. 1990, c.
    F.3.  The appellants also claimed prejudgment and postjudgment interest as well
    as costs.

[3]

After a nine-day trial,
    the jurys answers to the questions, approved by counsel, were: (i) in respect
    of Sandra Harte-Eichmanis, general damages, $40,000; financial loss  past,
    present and future loss of income  no dollars; and (iii) in respect of Mr.
    Harte-Eichmanis, loss of guidance, care and companionship, no dollars.

[4]

The trial judges final
    order granted Sandra Harte-Eichmanis damages in the amount of $10,000 ($40,000
    less the statutory deduction of $30,000).

[5]

On appeal the appellants
    argued that this court had jurisdiction to hear the appeal.  After hearing
    counsels submissions we disagreed and transferred the appeal to the Divisional Court.  We advised that reasons would follow.  These are the reasons.

[6]

The
    jurisdiction of this court is found at s. 6(1) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43
and s. 6(1)(b) provides that an
    appeal lies to the Court of Appeal from a final order of a judge
of the Superior Court of Justice,
    except an order referred to in s. 19(1)(a).  Section 19(1)(a) in turn provides
    that an appeal lies to the Divisional Court from, (a) a final order of a judge
    of the Superior Court of Justice, as described in subsections (1.1) and (1.2).

[7]

Specific to this appeal,
    s. 19(1.2) provides that, (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).

[8]

Counsel for the appellants

not counsel at trial

submitted that the jurys assessment of a claim for an amount
    equal to zero dollars constituted a dismissal of the appellants claims.  The
    proper approach, he argued, is for the court to look to the amount actually
    claimed under that cause of action rather than the jurys assessment.

[9]

The appellants ask this
    court to consider its earlier decision in
Canady v. Tucci
, 2009 ONCA 554, 97 O.R. (3d) 145, in
    support of their submission that this court has jurisdiction to hear the appeal
    on the basis that, while the amount ordered by the trial judge for general
    damages does not exceed $50,000 (s. 19(1.2)(a)), the amount of the dismissed
    claim exceeds $50,000 (s. 19(1.2)(c)).

[10]

The appellants also rely on
Canady
in support of their submission that
    the four subparagraphs of s. 19(1.2) are disjunctive and must be considered
    separately for the purpose of determining jurisdiction.  Since the amount of
    their respective dismissed claims each exceeds $50,000, the appellants submit
    that this court has jurisdiction to hear the appeal.

[11]

This reasoning is flawed for several
    reasons.

[12]

Under s. 19(1)(a)(1.2)(a)-(d), the Divisional Court has appellate jurisdiction in specific circumstances.  T
he purpose
    of
s. 19(1)
(a)
is to define an easily applied cut-off line for
    litigants to determine the proper appeal route in any particular case. The line
    that was drawn by the legislature is the monetary amount of a judgment or
    dismissed claim of $50,000:
Sepe v. Monteleone
,
    2006 CanLII 1173 (ON CA), at para. 6.

[13]

When deciding whether the Divisional
    Court has jurisdiction, a beginning principle is that because the
four
    subparagraphs are disjunctive each subparagraph is considered separately for
    the purpose of determining jurisdiction:
Canady v. Tucci
, 2009 ONCA
    554 (CanLII), at para. 22
.  There are other
    principles to consider that flow from the language of the rule, namely:

·

Where an amount is ordered to be paid, it is the amount of
    payment ordered, not the amount of the claim that is determinative:
McGrath
    v. Woodrow

(2001), 52 O.R. (3d) 732 (C.A.), at para. 16.

·

Where an amount is ordered paid - s. 19(1.2)(a) or (b) - one
    looks at each subsection individually to determine if the amount of the
    judgment claim is under or over $50,000:
Sepe
, at para. 7.

·

Where a claim is dismissed - s. 19(1.2)(b) or (c) - if the amount
    of a claim is not determined or is assessed at less than $50,000, jurisdiction
    is with the Divisional Court.

·

All of the claims, whether allowed or dismissed and whether
    claimed by one party or more than one party, within each subparagraph are to be
    added together in order to apply
s. 19(1)
(a):
Canady
,
    at para. 23.  One looks at the total amount assessed by the trial judge for all
    parties.

[14]

Further, 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, an appeal lies to the Divisional Court: see,
Sherman v. 21 Degree
    Heating and Air Conditioning Inc.
, 2008 CanLII 63156 (ON SCDC), at para.
    5.  Equally, an appeal lies to the Divisional Court in circumstances where, as
    here, liability is not in issue but the damages claimed have been assessed at
    zero dollars.


[15]

The order which is subject of this
    appeal provides that the respondent must make a single payment of an amount
    that was not more than the amount set out in s. 19(1.2)(a)  $40,000 ($10,000
    net of the $30,000 statutory deductible).  Section 19(1.2)(a) applies because
    the trial judge made an order for a single payment of a sum of money less than
    $50,000.

[16]

The amount claimed by Sandra
    Harte-Eichmanis ($500,000) is not relevant in the determination of
    jurisdiction.  The determinative factor, as this court made clear in
McGrath
,

is the amount of payment
    ordered, not the amount of the claim.  A
n appeal lies
    to the Divisional Court because, liability is not in issue and the damages
    claimed were assessed at less than $50,000.

[17]

Reading the subparagraphs
    disjunctively does not assist the appellants.
Peter Eichmanis claim of $75,000 under the
Family
    Law Act
and the jury
    assessment of damages in the amount of zero dollars gives rise to the same
    result.  Again, the amount claimed is not relevant; rather, the claim was not
    proven and the jury assessed damages at zero dollars.

[18]

As a result, the appeal lies to the
    Divisional Court pursuant to s. 19(1)(a).

Doherty J.A.

H.S. LaForme J.A.

Turnbull J. (
ad hoc
)


