Philpott v. 338200-1 Canada Inc., 2015 ONSC 3149
CITATION: Philpott v. 338200-1 Canada Inc., 2015 ONSC 3149
DIVISIONAL COURT FILE NO.: CV-13-4212-00
DATE: 20150515
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JUSTICE F. DAWSON
BETWEEN:
KEVIN PHILPOTT and SCHONFELD INC., TRUSTEE IN BANKRUPTCY FOR THE ESTATE OF THE BANKRUPT, 2305006 ONTARIO LIMITED
Plaintiffs (Applicants)
- and -
338200-1 CANADA INC., 1641897 ONTARIO INC., 1009734 ONTARIO INC., DORIS WADDELL and DWAYNE WADDELL
Defendants (Respondents)
COUNSEL: Romesh Hettiarachchi, for the Plaintiffs (Applicants) Tyler McLean, for the Defendants (Respondents)
HEARD: in writing
APPLICATION FOR LEAVE TO APPEAL AN INTERLOCUTORY ORDER
[1] The applicants seek leave to appeal the interlocutory order of LeMay J. dated January 28, 2015 and leave to appeal the corresponding costs order dated February 19, 2015. Pursuant to recent amendments to Rule 62 of the Rules of Civil Procedure that came into effect on January 1, 2015 such applications are now to be dealt with in writing.
[2] The test to be applied on this application is set out in Rule 62.02(4) 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. R.R.O. 1990, Reg. 194, r. 62.02 (4).
[3] In the applicants’ Fresh as Amended Notice of Motion for Leave to Appeal only the considerations in Rule 62.04(2)(b) are raised. The applicants’ factum addresses issues concerning correctness of the decision and general importance. Consequently, my focus is upon the test in clause (b) of the rule.
[4] With respect to the first branch of the test, it is not necessary for the applicant to convince the court that the decision is wrong or probably wrong, but only that there is good reason to doubt the correctness of the decision. The question is whether the decision is open to serious debate: Judson v. Mitchele, 2011 ONSC 604; Brownhall v. Canada (Minister of National Defence) (2006), 80 O.R. (3d) 91 (S.C.J.).
[5] With respect to the second branch of the test, leave will only be given where the appeal involves matters of general or public importance which transcend the interests of the parties, warranting resolution by a higher level of judicial authority, such as matters relevant to the development of the law and the administration of justice: Greslik v. Ont. Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.); Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.).
[6] In this case two lawsuits were launched in connection with the sale of the assets of a business originally operated by the Waddell parties. The assets were sold to Kevin Philpott or a company to be named later. After the sale, 2305006 Ontario Limited (230) was incorporated.
[7] In the first lawsuit, which was brought by the Waddell parties, it is alleged that the payment provisions of the contract for the purchase and sale were not honoured by the Philpott parties.
[8] In the second lawsuit, which was brought by Kevin Philpott and 230, it is alleged the Waddell parties misrepresented the revenues of the business.
[9] Issues have arisen as to whether the agreement of purchase and sale was effectively assigned to 230, which is now bankrupt, and about whether Kevin Philpott is personally liable for breach of the terms of the agreement of purchase and sale. In this context the parties have engaged in inconsistent pleadings as between the two actions. This led to the series of motions, brought by both sides, which were all dismissed. LeMay J. awarded modest costs to the Waddell parties on the basis that they were slightly more successful.
[10] Having carefully and repeatedly reviewed the filed material I am of the view that leave to appeal should not be granted. While the motion judge erroneously referred to one of the motions as a motion for judgment and made certain other misstatements, I am not persuaded that there was any error which matters. When I say any error I mean in the context of the test for leave to appeal.
[11] The situation the motion judge was confronted with was factually complex. There is a considerable amount of conflicting evidence. I am not persuaded that in view of that conflicting evidence and the deference that attaches to findings of fact, it can be said that the judge’s decision reflects significant legal error or that the test for error on a leave to appeal application is met.
[12] However, even assuming the first branch of the test is satisfied, I conclude that the applicants have failed to demonstrate that the second branch of the test is met. This is a case which is driven by the facts, and as I have said, there is considerable conflicting evidence. For that reason I do not see this as a case where the development of the law will be aided by further appellate review, as the applicants contend. There is nothing of such importance that it transcends the interests of the parties. Consequently, I would also deny leave under the second branch of the test.
[13] Costs are in the judge’s discretion. It is rare to grant leave to appeal on the issue of costs alone and I would not do so in this case. It seems to me that the motion judge’s costs determination was reasonable.
[14] The respondents should have their costs of this application. If the parties cannot agree on costs the parties should exchange costs outlines and written submissions not to exceed two pages and provide them to me within 20 days.
F. DAWSON J.
Released: May 15, 2015
CITATION: Philpott v. 338200-1 Canada Inc., 2015 ONSC 3149
DIVISIONAL COURT FILE NO.: CV-13-4212-00
DATE: 20150515
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
F. DAWSON J.
BETWEEN:
KEVIN PHILPOTT and SCHONFELD INC., TRUSTEE IN BANKRUPTCY FOR THE ESTATE OF THE BANKRUPT, 2305006 ONTARIO LIMITED
Plaintiffs (Applicants)
- and –
338200-1 CANADA INC., 1641897 ONTARIO INC., 1009734 ONTARIO INC., DORIS WADDELL and DWAYNE WADDELL
Defendants (Respondents)
APPLICATION FOR LEAVE TO APPEAL AN INTERLOCUTORY ORDER
Released: May 15, 2015