Court File and Parties
COURT FILE NO.: 07-CV-331988 PD3 COMMERCIAL LIST FILE NO.: 07-CL-007071 DIVISIONAL COURT FILE NO.: 130/09 ML DATE: 20090331 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LOOK COMMUNICATIONS Inc. (PLAINTIFF/MOVING PARTY) v. BELL Canada Inc. (defendant/responding PARTY)
BEFORE: Justice Denise Bellamy
COUNSEL: Hilary E. Clark & Jeffrey Levine, for the plaintiff/moving party R. Paul Steep & Thomas N. T. Sutton, for the defendant/responding party
HEARD AT TORONTO: March 30, 2009
ENDORSEMENT
Bellamy J.
1Look Communications Inc. ("Look") seeks leave to appeal a decision of Wilton-Siegel J., dated February 11, 2009, in which he dismissed Look's motion to vary the terms of an injunction granted to Look by Stinson J. on July 31, 2007. Look seeks leave to appeal on the basis that the motions judge's discretionary decision conflicts with other decisions in Ontario and elsewhere, and on the basis that there is good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that leave to appeal should be granted.
2The motion is dismissed.
3First, there is no conflict with another decision in Ontario or elsewhere as required under Rule 62.02 (4) (a). The motions judge concerned himself with the specifics of the case before him, and with the importance of protecting the parties and the maintenance of the status quo. In exercising his discretion, he simply did so in a way that was different from that of the motions judge in International Chemalloy Corp. v. Kawecki Berylco Industries Inc., [1997] O.J. No. 1413 (H.C.). In so doing, he was well aware of International Chemalloy. This is not a difference in principle; it is merely a difference in the application of a discretion and it is not a difference that will create any confusion in the law requiring a resolution by a full panel of the Divisional Court.
4Second, there is no reason to doubt the correctness of the Order in question as required under Rule 62.02 (4) (b). Basically, the motions judge exercised his discretion to evaluate whether circumstances had changed in accordance with applicable common law factors. He then continued the Stinson Order with a slight variation to make it less onerous for Look than the original Order. This decision permitted the auction process to proceed and allowed Look the opportunity to sell the MDS Spectrum, something it could have done under the Stinson Order only with Bell's consent or with court approval. He did not provide Look all that it had been seeking, but neither did he impose a Mareva-type remedy, as suggested by Look, or as was found to be the case in Salna v. Lotfi-Noushad, [2007] O.J. No. 1856 (S.C.J. (Div.Ct.). The Order was and remains a supervision Order. If, as Look implies, Bell were to unreasonably prevent Look from dealing with its assets pursuant to paragraph 3 of either Order, a supervising court likely would be inclined to deal with this by way of a costs sanction.
5Finally, even if I were to conclude that the motions judge's decision was open to very serious debate, it would still be necessary for Look to demonstrate under the second part of Rule 62.02 (4) (b) that the proposed appeal involves matters of such importance that leave to appeal should be granted. This test has not been met. The proposed appeal is very fact specific between two corporate entities, with no broad conclusions or questions of principle. It does not transcend the immediate interests of the specific facts of this case and it raises no issues of general public interest.
6Costs of $5,000.00 payable forthwith by the moving party to the responding party.
Bellamy J.
DATE: March 31, 2009