In Sandu v. Fairmont Hotels, released September 11, 2015, the Ontario Court of Appeal confirmed that s. 19(1.2)(d) of Ontario’s Courts of Justice Act must be interpreted fairly to give the Divisional Court jurisdiction over an appeal of a Superior Court order “dismissing a claim for an amount that is more than [$50,000] 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 [$50,000]”. The Court held that this provision applied to this case, where the trial judge dismissed a defamation claim but held that she would have assessed damages at $25,000. The appellant argued that the trial judge’s failure to explicitly consider claims for aggravated or punitive damages meant that she could bring the appeal to the Court of Appeal. The Court of Appeal disagreed:

[2]  The trial judge dismissed the appellant’s claim for defamation but held that if she had found the claim had merit, “In all the circumstances, I would assess her damages at $25,000.” The moving party submits that, accordingly, s. 19(1.2)(d) of the Courts of Justice Act applies. Section 19(1.2)(d) states that the Divisional Court has jurisdiction where the Superior Court makes an order:

dismissing a claim for an amount that is more than [$50,000] 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 [$50,000].

[3]  The responding party submits that the trial judge’s award would have been for general damages only and that the trial judge did not turn her mind to what the appropriate award would have been for aggravated and punitive damages. He submits that we cannot infer she would have awarded nothing for these heads of damages and that the total of the amounts awarded may have exceeded $50,000.

[4]  We disagree. The trial judge assessed damages globally. Her award was for the entire claim. The applicable section is s. 19(1.2)(d) of the Courts of Justice Act. Although the trial judge dismissed the claim for an amount that was more than $50,000, she indicated that if the claim had been allowed the amount awarded would have been $25,000.

[5]  The motion to quash is allowed and the appeal is transferred to the Divisional Court. […]