On October 14, 2014, the Ontario Court of Appeal confirmed in Hanisch v. McKean that an appeal lies in the Court of Appeal if the “final order” appealed from includes non-monetary aspects over which the Divisional Court would not have jurisdiction, even if (as here) the appellants only appeal the aspect of the order relating to damages, and those damages are less than $50,000.

In the case, the trial judge declared, among other things, that the appellant and another defendant did not have an easement and that the other defendant did not have a right to an injunction. He also found the appellant liable for negligent misrepresentation, and awarded $25,500 in damages to the respondent. The appellant appealed only the parts of the judgment that led to the damages award.

The respondent objected to the appeal proceeding in the Court of Appeal, as, pursuant to the Courts of Justice Act [CJA], the Divisional Court has jurisdiction to hear an appeal from a final order for “a single payment of not more than $50,000, exclusive of costs”. It was conceded that the Divisional Court would not have jurisdiction to hear an appeal of the non-monetary aspects of the appeal, but the respondent submitted that because they were not appealed, the appeal needed to proceed in the Divisional Court.

For a unanimous Court of Appeal, Simmons J.A. rejected this argument, emphasizing that jurisdiction would be grounded in light of the “whole order” appealed from:

[19]      The specific question raised by the respondent concerns the meaning of “final order” as it appears in ss. 6 and 19 of the CJA. If “final order” can properly be read as referring to the particular term(s) of a final order that is/are under appeal, then the respondent is correct and this appeal lies to the Divisional Court.

[20]      However, if “final order” must be read as meaning the entire final order, irrespective of what portions of the final order are under appeal, then the respondent is incorrect and this court has jurisdiction to entertain this appeal.

[21]      I note at the outset that, when determining this court’s jurisdiction over orders having both final and interlocutory aspects, this court has generally distinguished between the final and interlocutory aspects of the order [...] However, this distinction is required by s. 6(1)(b) of the CJA, which limits the appellate jurisdiction of the Court of Appeal to final orders.

[22]      In my view, two factors point strongly to the conclusion that “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.

[23]      First, in Sepe v. Monteleone (2006), 78 O.R. (3d) 676, at para. 6, this court described the purpose of section 19(1)(a) of the CJA as being “to define an easily applied cut-off line for litigants to determine the proper appeal route in any particular case.” Examining the overall scheme of ss. 6 and 19 of the CJA in the light of this purpose of s. 19, interpreting “final order” as meaning anything other the whole of the final order would not make sense.

[24]      When ss. 6(1), 6(2) and 19 are read in combination, it is apparent that 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. 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.

[25]      Considered in the context of this statutory scheme, it would not make sense to interpret “final order” as meaning anything other than the whole of the final order.

[...]

[27]      When read in light of the purpose of s. 19, which is to provide an easily applied cut-off line for litigants to determine the proper appeal route in any particular case, it is my view that “final order” as it appears in ss. 6 and 19 can only sensibly be interpreted as meaning the whole of the final order. 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.

[28]      Second, in applying the four subparagraphs in each of ss. 19(1.1) and (1.2) of the CJA to determine which court has jurisdiction, this court has generally focused on the final order as a whole and not simply the aspect of the order under appeal or the amount claimed on appeal by individual parties. [...]

[29]      So, for example, in McManus v. Feldman Investments Ltd., [2003] O.J. No. 5762, this court determined that it had jurisdiction over an appeal where the appeal related solely to punitive damages quantified at $16,750, but the total amount of the judgment was $148,143.

[30]      Similarly, in Mohammed (Personal Representative of) v. Tucci, 2009 ONCA 554, 97 O.R. (3d) 145, this court held that for the purpose of applying ss. 19(1)(a) and 19(1.1)(c) or (d), the value of all the plaintiffs’ claims that were dismissed must be added together to determine the total amount of the dismissed claim. In that case, the plaintiffs sued for damages arising from the death of their infant son, alleging medical malpractice. The trial judge dismissed the action, but assessed the damages for each parent in an amount that fell within the jurisdiction of the Divisional Court. However, when those sums were added together, the total exceeded the jurisdiction of the Divisional Court, giving this court jurisdiction.

[31]      Based on the foregoing reasons, I am satisfied that “final order” as it appears in ss. 6 and 19 of the CJA refers to the whole of the final order and I would not give effect to the respondent’s preliminary objection concerning jurisdiction.

Despite rejecting the respondent’s jurisdictional argument, Simmons J.A. did dismiss the appellant’s appeal on its merits.