Appeal Route for Dismissed Claim

There is sometimes confusion over which court to appeal to, and the Courts of Justice Act and the Rules of Civil Procedure need to be closely examined.

In Pullano v. Hinder, 2021 ONSC 4714, the Divisional Court addressed the appeal route for a claim that is dismissed. The plaintiff sued for battery. The jury determined that the defendant punched the plaintiff, but that the punch did not cause injury and that the plaintiff was not entitled to damages. Therefore, the plaintiff’s claim was dismissed. The plaintiff appealed to the Divisional Court.

Section 19(1.2) of the Courts of Justice Act provides the Divisional Court with jurisdiction to hear appeals in respect of the following final orders:

(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).

The Divisional Court held that none of provisions applied to the plaintiff’s case. Since the plaintiff was not awarded any damages, sections 19(1.2)(a) and (b) did not apply.

Section 19(1.2)(c) did not apply because, although the claim was dismissed, the plaintiff had claimed damages of $1.5 million, well above the monetary threshold of $50,000.

Section 19(1.2)(d) did not apply because the jury did not make a determination of the amount it would have awarded had the claim been allowed.

The Divisional Court held that it had no jurisdiction to hear the appeal and transferred the appeal to the Court of Appeal.

In conclusion, when a claim is dismissed, an appeal lies to the Court of Appeal, unless the plaintiff had claimed $50,000 or less, or unless the judge or jury determined that the damages would have been $50,000 or less had the claim succeeded.