) ) GOLAM MEHEDI Appellant/Plaintiff – v. –, 2017 ONSC 139

CITATION : Mehedi v. Kapteyn, 2017 ONSC 139 DIVISIONAL COURT FILE NO.: 404/16 DATE: 20170105 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT R.S.J. MORAWETZ, LEDERMAN and STEWART JJ. BETWEEN: ) ) GOLAM MEHEDI Appellant/Plaintiff – and – BIANCA KAPTEYN, JAMES SLOTEK, and RBC GENERAL INSURANCE CO.

Defendants/Respondents ) ) ) ) ) ) ) ) ) ) ) ) Golam Mehedi acting in person Michael Unea , for the Defendants/Respondents ) HEARD at Toronto: January 5, 2017 LEDERMAN J. (Orally) [ 1 ] This is an appeal from the order of Pollak J. dismissing the plaintiff’s motion to set aside the settlement of this action and the subsequent consent order dismissing the action against all defendants. [ 2 ] At the outset of this appeal, this court raised with Mr. Mehedi, who is self-represented, and with Mr. Unea, counsel for the respondents, whether the Divisional Court has jurisdiction to hear this appeal.

An opportunity was given to them to consider and address this issue. [ 3 ] After hearing their submissions, we have concluded that we do not have jurisdiction, but rather this appeal lies to the Court of Appeal. [ 4 ] The jurisdiction of the Divisional Court to hear appeals from a final order of the Superior Court judge is set out in s.19(1)(

a) and s.19 (1.2) of the Courts of Justice Act . [ 5 ] As pointed out by Morden & Perell in their text, The Law of Civil Procedure in Ontario , (1 st ed.) (2010) at p.783, “s.19 has caused many difficulties in application”. [ 6 ] Section 19 (1.2) sets out the limited kind of appeals that do not lie to the Court of Appeal and instead are appealable to the Divisional Court. Only subsections (

a) and (

c) are of possible relevance to this appeal. [ 7 ] Subsection (

a) is inapplicable because neither the order of Pollak J., nor the consent dismissal order, are for the payment of money.

[ 8 ] An analogous situation was considered by the Court of Appeal in Marcus Direct Marketing Inc. v. M. & K. Plastic Products Ltd. [1989] OJ No. 467 (Ont. C.A.) and Laurentian Bank of Canada v. Goldshmidt , 2013 ONCA 127 in which there were appeals from orders refusing to set aside default judgments in an amount less than the monetary limits for appeals to the Divisional Court.

Nevertheless, the Court of Appeal held that such appeals lie to the Court of Appeal because the order appealed from was not an order for “payment”. [ 9 ] In the instant case, not only is Pollak J.’s order not one for payment but neither is the consent dismissal order that Mr. Mehedi was seeking to set aside. [ 10 ] Subsection (

c) of s.19 (1.2) is inapplicable because neither the order of Pollak J., nor the consent dismissal order, were orders dismissing a claim for an amount not more than the Divisional Court monetary limit. [ 11 ] Although the settlement was for payment of $20,000.00, the amount claimed in the statement of claim was for $100,000.00 and therefore the consent dismissal order does not fall within subsection (c). [ 12 ] As the Court of Appeal stated in Marcus Direct, there may be some question about whether s.19 (1.2) carries out the intent of the legislature.

However, the plain meaning is clear and we do not have jurisdiction to hear this appeal. [ 13 ] Pursuant to s.110 (1) of the Courts of Justice Act , this appeal is transferred to the Court of Appeal. [ 14 ] The order of Pollak J. has not yet been issued. If the parties cannot agree upon the form and content of the order, they should settle it before the registrar. costs – R.S.J. MORAWETZ [ 15 ] I have endorsed the record as follows: “For oral reasons, appeal transferred to the Court of Appeal for Ontario. No costs.” ___________________________ LEDERMAN J. I agree ___________________________ R.S.J.

MORAWETZ I agree ___________________________ STEWART J. Date of Reasons for Judgment: January 5, 2017 Date of Release: January 10, 2017 CITATION : Mehedi v. Kapteyn, 2017 ONSC 139 DIVISIONAL COURT FILE NO.: 404/16 DATE: 20170105 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT R.S.J. MORAWETZ, LEDERMAN and STEWART JJ.

BETWEEN: GOLAM MEHEDI Appellant/Plaintiff – and – BIANCA KAPTEYN, JAMES SLOTEK, and RBC GENERAL INSURANCE CO. Defendants/Respondents ORAL REASONS FOR JUDGMENT LEDERMAN, J. Date of Reasons for Judgment: January 5, 2017 Date of Release: January 10, 2017