Court File and Parties

CITATION: Rei v. Antunes, 2015 ONSC 4568

DIVISIONAL COURT FILE NO.: 280/15

COURT FILE NO.: FS-14-396845-00

DATE: 20150716

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MANUEL PERES VIANA REI, Applicant

AND:

CLAUDIA SOFIA PEREIRA ANTUNES, Respondent

BEFORE: H. Sachs J.

COUNSEL: Ronald Zaldin, for the Applicant

Theresa Maclean, for the Respondent

HEARD: In writing

Endorsement

[1] This is a motion for leave to appeal the order of McWatt J., of April 17, 2015, in which she ordered that Josie Stern was to be the listing agent for the parties’ three properties.

[2] 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 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.

[3] 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), 1992 7405 (ON SC), 7 O.R.(3d) 542 (Div. Ct.).

[4] 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 finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., 2003 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J., per Then J.); Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282 (Gen. Div., per Farley J.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod Young Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J., per Catzman J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R.(2d) 110 (Div. Ct.).

[5] On this motion, the Applicant points to no conflicting decision. Therefore, the only basis for his motion is the one set out in Rule 62.02(4)(b). The problem is that even if there were reason to doubt the correctness of the order in question (which I have not found), the Applicant has failed to demonstrate that his appeal raises a matter of importance that goes beyond the interests of the parties.

[6] For this reason, the application for leave to appeal is dismissed. Contrary to the direction of the court, the Applicant did not file his submissions as to costs prior to the hearing of this motion. The Respondent did file submissions and she requests the sum of $2000.00, plus H.S.T. The Applicant shall have 10 days from the release of this endorsement to file his written response to this request.

H. SACHS J.

Date: 20150716