CITATION: L.W. v. A.W., 2012 ONSC 6063
DIVISIONAL COURT FILE NO.: 005/12
DATE: 20121022
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N :
L.W.
Applicant
(Responding Party on motion for leave to appeal)
– and –
A.W.
Respondent
(Moving Party on Motion to appeal)
Lorna Yates
For the Applicant (Responding Party on motion for leave to appeal)
A.W.
in person
HEARD at Toronto: October 22, 2012
ASTON J. (ORALLY):
[1] The March 20, 2012 Order of Justice Jennings, dismissing Mr. A.W.’ motion for leave to appeal the December 20, 2011 interlocutory order of Justice D. Wilson, was itself an interlocutory order. See Mignacca v. Merck Frosst Canada Limited [2009] O.J. No. 1883 at paragraph 21.
[2] Though the parties have sometimes characterized the matter now before the court as an appeal, the panel of this Court constituted earlier today was of the view that the Order of Justice Jennings could only be challenged on the basis of fresh motion for leave to appeal. Separate reasons will be released shortly for that decision. I am therefore hearing this motion in Divisional Court as a single judge of the Superior Court of Justice, by virtue of ss.19(1)(b) of the Courts of Justice Act and rule 61.03(1.1) of the Rules of Civil Procedure. I am required to apply the test set out in rule 62.02(4) to decide whether to grant leave to appeal the Order of Justice Jennings.
[3] Counsel for Mrs. L.W. fairly concedes that there is no reference to rule 62.02(4) in the reasons of Justice Jennings. The first question for me to decide is whether Justice Jennings thereby declined jurisdiction or otherwise erred when he relied upon non-compliance with costs awards and failure to bring a motion for leave to appeal (required by the orders of Justice Perkins) as the basis for dismissing Mr. A.W.’ motion for leave to appeal.
[4] Essentially Justice Jennings found, as a preliminary or threshold matter, that Mr. A.W.’ motion should be dismissed without even getting to the actual test under rule 62.02(4). There is certainly authority to support the proposition that an appeal may be quashed, even on appeals which are as of right, if an appellant is in default of a procedural order or the payment of costs. The same considerations are therefore legitimate considerations on whether to grant leave to appeal.
[5] The discretion exercised by Justice Jennings in this case is not in conflict with any other decision and in my opinion it is not desirable that leave to appeal be granted. This case will not be advanced by an appeal of the interlocutory borders of Justice D. Wilson in any meaningful way. The best way to address the substantive issues on the merits is for Mr. A.W. to obtain a trial date, by either paying the costs or getting the prior orders varied based upon his inability to pay and demonstrated compliance with his disclosure obligations.
[6] Furthermore, there is no reason to doubt the correctness of the order of Justice Jennings. Unless and until Mr. A.W. either complies with the orders related to leave and payment of costs, or has those orders rescinded or varied in the actual trial court, he does lack standing to appeal interlocutory orders. Furthermore, the proposed appeal, in my view, does not raise matters of importance that transcend the interests of the parties themselves.
[7] The outcome here would be the same if it was an appeal. The only basis for an appeal being granted would be that Justice Jennings declined to exercise his jurisdiction by misstating a statutory principle or by refusing to hear relevant submissions. See Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce, (1996) 29 O.R. (3d) p.612.
[8] Mr. A.W. has not established here that those grounds exist. Justice Jennings did not fail to exercise his jurisdiction. He simply exercised his discretion in a manner that was open to him and explained why he did so, namely on the basis of the failure to obtain leave as required by the order of Justice Perkins and the non-payment of costs.
[9] The motion for leave to appeal the March 20, 2012 Order of Justice Jennings is therefore dismissed.
Costs Submissions
[10] I have endorsed the Record: “For oral reasons delivered and recorded this motion is dismissed. Mr. A.W. is to pay costs fixed at $2,700 all inclusive.”
ASTON J.
DATE OF REASONS FOR JUDGMENT: October 22, 2012
DATE OF RELEASE: October 26, 2012
CITATION: L.W. v. A.W., 2012 ONSC 6063
DIVISIONAL COURT FILE NO.: 005/12
DATE: 20121022
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N :
L.W.
Applicant
(Responding Party on motion for leave to appeal)
– and –
A.W.
Respondent
(Moving Party on motion to appeal)
ORAL REASONS FOR JUDGMENT
ASTON J.
DATE OF REASONS FOR JUDGMENT: October 22, 2012
DATE OF RELEASE: October 26, 2012