CITATION: Lopez v. Frias, 2011 ONSC 5939
DIVISIONAL COURT FILE NO.: 219/11
DATE: 20111006
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
VIRGINIA LOPEZ
Plaintiff/Respondent
– and –
ELIZABETH FRIAS, a.k.a. ELIZABETH DECENA FRIAS, NOEL FRIAS, a.k.a. NOEL BALLESTEROS FRIAS
Defendants/Appellants
Ira E. Book
H. Keith Juriansz, for the Defendant/ Appellant, Noel Frias a.k.a. Noel Ballesteros Frias
HEARD at Toronto: October 6, 2011
DAMBROT J. (orally)
[1] The defendant brings this motion for leave to appeal to the Divisional Court from the order of Spence J., granting the plaintiff leave to amend her Statement of Claim by adding a new cause of action which the defendant says is time barred under the Limitations Act, 2002. The Reasons of the motions judge are found in a brief handwritten endorsement.
[2] On this motion, the defendant relies on the first branch of Rule 62.02(4), which requires the moving party on a motion for leave to establish that:
There is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted.
[3] The defendant says that the decision of the motions judge conflicts with a series of cases that he brought to my attention for the following reasons:
(a) he failed to consider whether the material facts upon which the plaintiff’s claim is based were discovered or ought to have been discovered within the relevant limitation period by the exercise of reasonable diligence;
(b) he failed to find that there is a statutory presumption that the plaintiff knew of the material facts on which his claim is based on the day that the act or omission giving rise to his claim occurred, unless the contrary is proved; and
(c) he failed to find that the plaintiff failed to rebut the presumption by demonstrating that these material facts were not discoverable with reasonable diligence within the limitation period despite the triggering of events that he mentions.
[4] For the purpose of this motion I am prepared to assume that the defendant is correct that the decision of the motions judge conflicts with the other cases he mentions in these three respects. But the conflict advanced here really boils down to an argument that the motion judge erred because he failed to apply the principles developed in those other cases.
[5] Approaching the question of conflicting decisions in this manner means that in virtually any case where it is alleged that a judge erred in law, there will be some conflicting decision that would permit a motion to succeed under this provision. The use of the first branch of Rule 62.02(4) would then become an easy manner to avoid the strictures of the second branch of the Rule, which requires the moving party to establish not only that there is good reason to doubt a decision, but more onerously that the matter is of importance.
[6] In my view, when the first branch of the rule speaks of conflicting decisions, it has reference to decisions that are in conflict on matters of law that are in need of resolution because they will leave other judges in doubt about which case or line of cases should be followed. The simple failure to follow other decisions, arguably correct decisions, in a handwritten endorsement that refers to no other cases and contains no reasoned consideration of the issues in question does not fall into that category.
[7] Alternatively, if a decision such as this one is properly considered to be in conflict with other decisions, then for the same reasons that I have just developed, the conflict does not rise to the level where it needs resolution, and so it is not desirable that leave be granted.
[8] I do not suggest that the foregoing exhausts the meaning of the question whether it is desirable to grant leave under this branch of the Rule. There may be cases where a palpable injustice cries out for leave to be granted although the conflict itself seems inconsequential. But here, the injustice, if any, is simply the possible expenditure of some additional costs. That is not good enough. The motion is dismissed.
DAMBROT J.
Date of Reasons for Judgment: October 6, 2011
Date of Release: October 20, 2011
CITATION: Lopez v. Frias, 2011 ONSC 5939
DIVISIONAL COURT FILE NO.: 219/11
DATE: 20111006
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT J.
BETWEEN:
VIRGINIA LOPEZ
Plaintiff/Respondent
– and –
ELIZABETH FRIAS, a.k.a. ELIZABETH DECENA FRIAS, NOEL FRIAS, a.k.a. NOEL BALLESTEROS FRIAS
Defendants/Appellants
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: October 6, 2011
Date of Release: October 20, 2011