Paperny, Rowbotham and Veldhuis JJA

14.38: Court of Appeal panels
14.5: Appeals only with permission

Case Summary

The Applicants, a condominium corporation and condominium management company, filed caveats against, and sought Court Orders to foreclose on properties for which condominium fees were not paid. The individual Respondent argued that he did not owe the Applicants anything, and therefore the Caveats and proposed foreclosure Orders were baseless. The Respondent also counterclaimed for $200,000 for general and punitive damages, as well as out-of-pocket expenses. The Chambers Judge summarily dismissed the Counterclaim, and ordered the Respondent to pay damages of $1,562.62 plus Costs. The Respondent appealed, and the Applicants applied to strike the Appeal. The Application was initially brought before a single Justice of the Court of Appeal, who directed the Application to be heard by a panel, as only a panel may “allow or dismiss an appeal on the merits” under Rule 14.38(1)(a).

The main issue before the panel was whether the Respondent required permission to appeal pursuant to Rule 14.5(1)(g), which states that matters where the controversy in the appeal can be estimated in money and does not exceed the sum of $25,000 exclusive of costs cannot be appealed unless permission to appeal has been obtained from the Court. In this case, the dollar amount of the damages was well within the $25,000 limit. However, the panel held that the “matter in controversy” in this case was about more than money. It was appropriate to consider the extent that the Judgment under appeal affected the interest of the party prejudiced by it. Here, the Respondent contended that the Chambers Judge erred on whether there was a debt at all – and it is the fact of a debt, regardless of the dollar amount, that would give rise to the right to file a Caveat and to commence foreclosure proceedings. The Application to dismiss the Appeal was accordingly dismissed.

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