Appeal Route for Dismissed Claim When Damages Not Assessed

Section 19(1.2)(d) of the Courts of Justice Act gives the Divisional Court jurisdiction over appeals where:

• the trial court has dismissed a claim in which the plaintiff had not claimed more than $50,000 exclusive of costs, or
• the trial court has dismissed a claim and, if the claim had been allowed, the judge or jury would not have awarded more than $50,000 exclusive of costs.

What happens if the trial court dismisses a claim without assessing damages, when more than $50,000 was claimed by the plaintiff?

The appeal is to the Court of Appeal, not the Divisional Court. This was indicated by the Court of Appeal in the recent decision of Hearn v. McLeod Estate, 2019 ONCA 682.