CITATION: Sweet v. H. Hennink Construction Ltd., 2015 ONSC 2571

DIVISIONAL COURT FILE NO.: 575/14

DATE: 20150421

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: JENNIFER SWEET o/a LIONS BRIDGE STABLE (Responding Party/Plaintiff)

and

H. HENNINK CONSTRUCTION LTD. and ADVANCED FRAMING CORP. (Moving Party/Defendants)

COUNSEL: Clarence Lui, for the Moving Party, Advanced Framing

David Zuber and Joshua J.A. Henderson, for the Responding Party

HEARD: In Toronto, in writing

E N D O R S E M E N T

(Leave to Appeal to the Divisional Court)

MOLLOY J:

Introduction

[1] The defendant Advanced Framing Corp, seeks leave to appeal to the Divisional Court from the Order of A. O’Marra J. dated July 8, 2014, dismissing its motion for summary judgment. This is a simplified procedure action involving the construction of a riding arena, which collapsed, and the extent to which the loss is covered under a policy of insurance.

[2] The motion judge ruled that a trial was necessary to determine (1) whether Advanced Framing is an unnamed insured under the plaintiff’s builder’s risk policy; and (2) whether the plaintiff’s subrogation claims and her claim for loss of use and damages were excluded from coverage under the policy.

The Test for Granting Leave to Appeal

[3] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and that the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and in each case, both aspects of the two-part test must be met before leave may be granted.

[4] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is in the opinion of the judge hearing the motion “desirable that leave to appeal be granted”. A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd.¸(1992), 7 O.R. (3d) 542 (Div.Ct.).

[5] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong; that aspect of the test is satisfied if the judge granting leave is satisfied that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J. per Then J.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen Div., per Farley J.). In addition, the moving party must demonstrate matters of importance that go beyond the interest of the immediate parties and involve questions of general or public importance relevant to the development of the law and the administration of justice: Rankin v. McLeod Young Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J. per Catzman J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div.Ct.).

Ruling

[6] Applying Rule 62.02(4)(a), I am not satisfied that there are conflicting decisions as to the proper application of the test for summary judgment. The test applied by the motion judge was in accordance with the test established by the Supreme Court of Canada in Hyrniak v. Maudlin, 2014 SCC 7. The test does not mandate a trial in every case, nor does it mandate case management by the motions judge in every case. There is no difference in legal principle here. What the defendant objects to is the manner in which the motion judge applied the test. That does not constitute conflicting decisions. Even if it did, this is a simplified procedure matter and the total amount at issue is well under $100,000. A further appeal on an interlocutory point is not conducive to moving this case along expeditiously and in a cost-effective manner.

[7] Applying Rule 62.02(4)(b), I do not need to deal with the reason to doubt correctness test. The motion judge held that the resolution of this case depended on the particular terms of the insurance contract involved. He made no final determination as to the law of builder’s insurance. The matters at issue do not go beyond the interests of the parties to the litigation and do not raise questions of general or public importance relevant to the development of the law and the administration of justice.

[8] The plaintiff in her factum suggested a cost award of $1500 for partial indemnity costs and disbursements. I find that to be reasonable. Accordingly, this leave to appeal motion is dismissed with costs to the plaintiff fixed at $1500 inclusive of all taxes and disbursements, payable in 30 days.

MOLLOY J.

Date: April 21, 2015