Valemont Group v. Philmor Goldplate Homes Inc., 2010 ONSC 3195

CITATION: Valemont Group v. Philmor Goldplate Homes Inc., 2010 ONSC 3195

COURT FILE NO.: 03-CL-5201

DIVISIONAL COURT FILE NO.: 153/10

DATE: 2010/06/01

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Valemont Group v. Philmor Goldplate Homes Inc. et al

BEFORE: H. Sachs J.

COUNSEL: S. Dale Denis, for the Defendants/Plaintiffs by Counterclaim/Moving Parties

Stephen A. Edell, for the Plaintiff/Defendant by Counterclaim/Responding Party

HEARD: May 31, 2010 at Toronto

E N D O R S E M E N T

[1] This is a motion by the Defendants for leave to appeal the order of Karakatsanis J. dated March 18, 2010 (the “Order”) in which she found that the Defendants required leave to bring their motions for partial summary judgment and security for costs and found that the grounds for granting that leave did not exist.

[2] The Defendants apply for leave to appeal on the basis of both branches of Rule 62.02 (4). They allege that the learned motion judge erred when she found that the provisions of Rule 48.04 applied to them. In this regard they make two submissions. First, they submit that the order of the judge who set the trial date specifically waived the requirement for leave under Rule 48.04. Second, they argue that since they did not set the matter down for trial or consent to the matter being placed on the trial list, Rule 48.04 did not require them to obtain leave. With respect to the latter argument, the Defendants cited decisions that they allege are in conflict with the decision of the motion judge. Finally, the Defendants submit that the motion judge made a number of errors when she found that leave to bring the motions in question should not be granted.

[3] I do not accept that the decision reflects a conflict in legal principles in the case law that needs to be resolved by the Divisional Court. The facts in this case are unique, turning in part on the interpretation to be given to a specific order in which the trial date was set. In other words, the conflicting decisions turn on different facts. Thus the requirements of Rule 62.02(4)(a) have not been met.

[4] With respect to Rule 62.02(4)(b), I do not accept that this appeal meets the second part of the test for leave to appeal under that sub rule. This appeal does not raise matters of such importance that leave to appeal should be granted. In Greslik v. Ontario Legal Aid Plan (1988) 1988 4842 (ON SCDC), 65 O.R. (2d) 110 the Divisional Court found that this aspect of the test refers to “matters of general importance not matters of particular importance, relevant only to the litigants. General importance relates to matters of public importance and matters relevant to the development of the law and the administration of justice.”

[5] While the matters raised in this appeal are clearly of great importance to the Defendants, they do not raise matters of public importance or matters relevant to the development of the law and the administration of justice. The impact of the amendments to the summary judgment rule to matters that were placed on the trial list before the rule came into effect will not be determined in a general way by this appeal. Again, this appeal turns on a particular set of facts and the interpretation of a particular set of orders.

[6] For these reasons, the motion for leave to appeal is dismissed. The Defendants shall pay the Plaintiff their costs of this motion, fixed in the amount of $3,000.00. These costs are payable at the conclusion of the trial.

H. Sachs J.

DATE: June 1, 2010