Court File and Parties
CITATION: Talisman Resort GP Inc. v. Rock Shire Woods Development Inc., 2014 ONSC 5267
DIVISIONAL COURT FILE NO.: 262/14
DATE: 20140911
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
TALISMAN RESORT GP INC. Plaintiff (Moving Party)
– and –
ROCK SHIRE WOODS DEVELOPMENT INC., MICHAEL SPENCLEY and JOHN ROCK Defendants (Responding Parties)
COUNSEL:
Ranjan Agarwal, for the Plaintiff (Moving Party)
Shruthi Raman, for the Defendants (Responding Parties)
HEARD at Toronto: September 11, 2014
Oral Reasons for Judgment
C. HORKINS J. (orally)
[1] The plaintiff seeks leave to appeal the interlocutory order of Lederman J. dated May 20, 2014. This order requires the plaintiff to post security for costs in the amount of $140,000 and to do so before the start of trial.
[2] The test for leave to appeal an interlocutory order of a judge is set out in Rule 62.02(4) which states as follows:
Leave to appeal shall not be granted unless,
(a) 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; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[3] The plaintiff on this motion relies on both (a) and (b) of Rule 62.02(4). Leave to appeal is denied. The plaintiff has not satisfied either (a) or (b).
[4] The motion before Lederman J. was brought on an urgent basis, five days before trial. As noted by Lederman J., the plaintiff conceded that the defendants “have established prima facie that the elements of Rule 56.01(d) have been satisfied.”
[5] Dealing with the test for leave under 62.02(4)(a) first. The plaintiff has not satisfied this Court that there is a conflicting decision by another judge or Court in Ontario or elsewhere on the matter involved in the proposed appeal. The so-called conflicting decisions that counsel relies upon relate to Rule 48.01(1). This rule provides that when a matter is set down for trial, leave of the Court is required to initiate or continue a motion.
[6] I have been referred to a series of decisions dating back to Hill v. Ortho Pharmaceutical (Canada) Ltd., 11 C.P.C. (3d) 236 (Gen. Div.). In 1992, these series of decisions discussed a test for Rule 48.01(1). More recently, C. Brown J. stated in Adrian Peel Architect Inc. v. Soorty, 2013 ONSC 6183 at para. 19, that a decision to grant leave under Rule 48.01(1) is a discretionary decision and is dependent on the circumstances. C. Brown J., in para. 19 outlines the caselaw on this issue as follows:
The relevant test is as set forth in Tanner v. Clark, (1999) O.J. No. 581 (Ont. Gen. Div.). As outlined herein, two lines of cases existed. One line held that there should be a substantial and unexpected change in circumstance prerequisite to granting leave to proceed with a motion after the matter had been set down for trial. The other, now dominant, held that there is more flexibility, and that a test involving substantial, unexpected change was too restrictive, such that the exercise of discretion in the leave application is dependent on the circumstances of the case: 855191 Ontario Ltd. v. Turner, [2011] O.J. No. 668 (Ont. S.C.J.); and see Gloucester Organization Inc. v. Canadian Newsletter Managers Inc. (1991), 21 O.R. (3d) 753 (Ont. Gen. Div.).
[7] The fact that the test under Rule 48.01(1) has evolved as stated by C. Brown J. does not, in my view, mean that there is a conflicting decision as required by Rule 62.04(a). It therefore follows that it is not desirable that leave be granted.
[8] The plaintiff also argues that the motions judge defined “prejudice” in conflict with other decisions because he said the security ordered “shall not delay the trial nor would it cause any inordinate prejudice to the plaintiff.” Counsel argues that the test does not require “inordinate prejudice” nor should it be related to the pending trial. Use of this word ‘inordinate’ cannot be viewed in isolation. The motion judge was provided with a letter from plaintiff’s counsel. This letter is referred to in the Reasons. The Reasons state, “Further in a letter dated May 14, 2014, counsel states that ‘if security is ordered Talisman could be in a position to post’ security.”
[9] It is fair to say that based on the plaintiff’s own statement, the motions judge was simply remarking what was obvious: that the plaintiff could post security and no prejudice would follow.
[10] Based on these circumstances, I see no reason for concluding that there is a conflicting decision on the issue of prejudice.
[11] Dealing with s.62.02(4)(b), there is no good reason to doubt the correctness of the motion judge’s order. He clearly articulated the fact that the defendants only became aware after the pre-trial that the same plaintiff had been ordered to post security in the Kyser action in the amount of $150,000 and that the plaintiff had not done so.
[12] I add, that regardless of what test the moving party on this motion says applies to Rule 48.01, these facts justified the exercise of the motion judge’s discretion.
[13] Lastly, this is clearly a dispute between private parties. It does not go beyond the interests of the litigants. Therefore, it does not involve matters of such importance that leave should be granted.
[14] Motion denied.
COSTS
[15] I have endorsed the Motion Record, “Motion for leave to appeal order of Lederman J. dated May 20, 2014 is dismissed. Costs payable by plaintiff to responding defendants fixed at $6,000 all inclusive, payable in 30 days.”
C. HORKINS J.
Date of Reasons for Judgment: September 11, 2014
Date of Release: September 15, 2014
CITATION: Talisman Resort GP Inc. v. Rock Shire Woods Development Inc., 2014 ONSC 5267
DIVISIONAL COURT FILE NO.: 262/14
DATE: 20140911
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. HORKINS J.
BETWEEN:
TALISMAN RESORT GP INC. Plaintiff (Moving Party)
– and –
ROCK SHIRE WOODS DEVELOPMENT INC., MICHAEL SPENCLEY and JOHN ROCK Defendants (Responding Parties)
ORAL REASONS FOR JUDGMENT
C. HORKINS J.
Date of Reasons for Judgment: September 11, 2014
Date of Release: September 15, 2014