Court File and Parties
COURT FILE NO.: 624/07
DATE: 20080307
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BEFORE: ferrier, cumming and lax jj.
B E T W E E N:
MCAP SERVICE CORPORATION Plaintiff
- and -
FREDERICK MCLAREN and SONIA MCLAREN Defendants
COUNSEL: Mark Hartman, for the Plaintiff No One Appearing
HEARD at Toronto: March 7, 2008
Endorsement
[1] The motion for leave to appeal the Decision of Coats J. was heard by Clarke J. on April 16, 2007 and occupied a one-half day hearing. Both parties prepared lengthy factums. Clarke J. reserved his decision.
[2] Almost six months later the plaintiff made inquiries through the Milton Court office. He was advised that the matter was listed on the computer as reserved and the court file did not contain reasons. The following day the plaintiff’s counsel received a fax containing the following endorsement, “Leave to appeal denied. Costs reserved to trial judge.”
[3] There is ample authority in the Ontario Court of Appeal to the effect that litigants are entitled to have reasons delivered by the Court in disposing of matters. This has been recognized as fundamental to the due administration of justice.
[4] Moreover the failure to give reasons and the circumstances of this case, give rise to a real concern that Clarke J. failed to deal with the motion for leave on its merits. This is unacceptable.
[5] Indeed, the effect is that Clarke J. declined jurisdiction.
[6] In all of the circumstances it is clear that the motion for leave must be reheard, before another judge.
[7] The motion for leave must be heard in Central West given that there has been no consent of the parties or direction of the Chief Justice that the appeal be heard in Toronto. That being the case, notwithstanding the unopposed order transferring the action to Toronto, the motion for leave must also be brought in Central West. See Kambalow v. Toronto Airport Christian Fellowship et al., released March 7, 2008.
[8] No order as to costs.
FERRIER J.
CUMMING J.
LAX J.
Date of Release: March 11, 2008