In Ontario, the Divisional Court (by amending legislation) now has jurisdiction to hear an appeal made from a final judgment of the Ontario Superior Court of Justice for an amount of not more than $50,000 (previously $25,000), exclusive of costs. Any award over that amount is appealed to the Court of Appeal. Seems clear enough.

However, the jurisdictional issue is muddied by the provisions of the Estates Act, section 10 of which provides that, for any party taking part in a proceeding under that Act, an appeal lies to the Divisional Court. But what if the value of the amount in dispute exceeds $50,000?

Does this cause the Divisional Court to lose jurisdiction? The answer would appear to be “no.” The Court of Appeal, in Re Sinicropi Estate [2000] O.J. No. 838, by agreement of the parties, transferred an appeal from an order on a passing of accounts application to the Divisional Court in which the amount in dispute was over $60,000.00 (as disclosed in the Divisional Court decision: see [2000] O.J. No. 4493).

However, a nice question arises when an appeal is made from a judgment on a contested passing of accounts of an attorney under power of attorney for property. Is the appeal properly made to the Divisional Court? The Estates Act (s. 49(1)) specifically contemplates the passing of accounts by a “guardian.”

It is arguable that, as is the case under s.38 of the Substitute Decisions Act, (“SDA”) this reference to guardian (assuming it means “court appointed guardian”) should be read to include an attorney for property. Of course the references in the SDA significantly postdate the Estates Act, inevitably giving rise to some question as to what was the intention of the legislature when the statute was proclaimed (or whether such a procedural nicety was even considered).

Have a great weekend,

David