CITATION: Venkatacharya v. Venkatacharya, 2012 ONSC 3531
DIVISIONAL COURT FILE NO.: 097/12
DATE: 20120627
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: PATANJALI VENKATACHARYA
Applicant
- and -
HARI VENKATACHARYA, TUPPIL VENKATACHARYA and PUBLIC GUARDIAN AND TRUSTEE
Respondents
BEFORE: Justice Matlow
COUNSEL: Shelina Ali Kelley Bryan
for the Applicant Patanjali for the Respondents Tuppil Venkatacharya
Venkatacharya and Public Guardian and Trustee
Ian Roher and Colleen Feehan
for the Respondent Hari Venkatacharya
DATE HEARD: April 27, 2012
E N D O R S E M E N T
[1] This motion, brought on behalf of the respondent, Hari Venkatacharya, for leave to appeal an interlocutory order of a motion judge of this Court is dismissed.
[2] I heard this motion at Toronto pursuant to rule 62.02 (1.1) as a “judge of the Divisional Court sitting as a Superior Court of Justice judge”. Accordingly, it was premature for the moving party to title this motion as if it were brought in the Divisional Court.
[3] The moving party has not met the threshold test set out in either rule 62.02(4)(a) or (b) with respect to the issues for which leave to appeal is sought.
[4] For the purpose of this motion, I have set aside any consideration of the submissions and admissions made as to whether those issues were raised by the moving party before the motion judge. If I had concluded that the issues had not been raised but did otherwise meet the threshold, I would have granted leave and left it for the Divisional Court to consider whether any failure to raise those issues should be excused in the circumstances of this appeal or should be viewed as fatal.
[5] I have one further observation. Although the practice in this Court is not uniform, it is my respectful view that reasons for refusing leave to appeal an interlocutory order need not, generally, be given as is the practice in appeals in the Supreme Court of Canada, the Court of Appeal and many other Canadian courts. An order refusing leave is not appealable and there is no good reason why the reasons of the judge refusing leave should contain, as they often do, the judge’s view of the order’s actual correctness. Instead, it is better if they state, succinctly, only the motion judge’s conclusion that the threshold tests for obtaining leave have not been met. Although the Divisional Court might be assisted by more extensive reasons granting leave to appeal so that the issues with respect to which leave is granted might be clarified, that purpose does not need to be addressed when leave is refused.
[6] Counsel may make written submissions with respect to costs on or before July 27, 2012, by exchanging them in reasonable sequence and leaving copies for me at Osgoode Hall, failing which no costs will be awarded.
Matlow, J.
DATE: June 27, 2012