Ontario Superior Court of Justice (Divisional Court)

Court File No.: 773/03 Date: 2004-02-17

Re: J. Dannial E.S. Baker carrying on business as Baker, Ranieri v. Zurich Canada

Before: Swinton J.

Counsel: J. Dannial E.S. Baker in person/Responding Party Noel Peacock for the Defendant/Moving Party

Heard: February 12, 2004

Endorsement

[1] The defendant Zurich Canada seeks leave to appeal the order of B. Wright J. dated December 3, 2003, in which he dismissed the defendant’s motion for summary judgment in this simplified rules proceeding.

[2] Essentially, Wright J. determined that there was a live issue as to whether a confidentiality clause was an implied term of the settlement reached by the parties, and the determination of that issue required cross-examinations to determine credibility. As well, he determined that Zurich’s liability for the actions of counsel was also an open issue.

[3] The moving party argues that Wright J. applied the wrong test for a summary judgment motion under Rule 76.07(9). However, Wright J. made reference to the appropriate provision and applied it to the facts. There was affidavit evidence from Mr. Baker in response to the moving party’s materials, as required on a motion for summary judgment. In my view, there is no error in the test applied, nor good reason to doubt the correctness of his decision.

[4] The moving party also argues that Wright J. made decisions in conflict with other decisions. In my view, there is no conflicting decision. Wright J. has not found that a confidentiality clause can be implied as a term of a release, nor that a client can be held liable for the unauthorized acts of its counsel. Rather, he has determined that there is an issue as to whether a confidentiality clause can be implied as part of the settlement and whether there is liability for counsel’s actions as a result.

[5] In my view, there are neither conflicting decisions within Rule 62.02(4)(a) nor good reason to doubt the correctness of the order within Rule 62.02(4)(b). However, even were there reason to doubt the correctness of the decision, the moving party has not satisfied me that this case raises issues of general importance which extend beyond the interests of the immediate parties.

[6] Therefore, the motion for leave to appeal is dismissed. If the parties are unable to agree with respect to costs, they may make brief written submissions within 21 days of the release of this decision.

Released: February 17, 2004

Swinton J.