Court File and Parties

CITATION: Chan v. Chen, 2015 ONSC 4597

DIVISIONAL COURT FILE NO.: 225/15

DATE: 20150717

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHUNXIANG YAN and ZHENHUA WANG, Plaintiffs (Moving Parties)

AND:

XI CHEN aka QUIXI CHEN aka JESSICA CHEN aka JESSI CHEN aka XI CHAN, CHI LEUNG SZETO aka CHILEUNG SZETO aka LOUIS SZETO, JIM JIA aka JIAN JUN JIA, JINHUA CHEN, HONGMEI ZHAO, MIXCULTURE CAPITAL MANAGEMENT GROUP INC., MIXCULTURE TOURISM & TECHNOLOGY CO., LTD., CHINA CANADA BUSINESS TIMES LTD., CHINA CANADA BUSINESS TIMES LTD., 2380523 ONTARIO INC., AMERICAN VISIONTECH CO. LTD. and MAX CARRIER LTD., Defendants (Responding Parties)

BEFORE: H. Sachs J.

COUNSEL: Christopher P. Goldson, for the Plaintiffs/ Moving Parties P. James Zibarras, for the Defendants/ Responding Parties

HEARD: In Writing

ENDORSEMENT

[1] This a motion brought by the Plaintiffs seeking leave to appeal the decision of McEwen J., dated April 29, 2015, in which he ordered that $75,000.00 be released from the funds frozen in the Defendants’ accounts under a Mareva injunction to be used to pay legal fees in connection with an upcoming motion and he ordered the Plaintiffs to pay the Defendants their costs of the motion, fixed in the amount of $5000.00.

[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), 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] 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 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), 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.).

[5] On this motion, the Plaintiffs submit that there is a conflict between the motion judge’s decision and the decision of Penny J., dated November 17, 2014. On November 17, 2014, the Defendants brought a motion to vary and vacate the Mareva injunction that had been granted by D.M. Brown J. on December 20, 2013. Penny J. dismissed the Defendants’ motion to vary. At the time of this motion, the Defendants were unrepresented, had not attended to be cross-examined prior to the hearing of the motion, had not delivered proper materials and failed to appear at the hearing of the motion.

[6] The Defendants subsequently retained their present counsel, who re-attended before Penny J. on January 9, 2015 and requested that $50,000 be released for legal fees to allow the Defendants to properly bring their motion to vary. Penny J. ordered that the requested funds be released.

[7] By the time of the motion before McEwan J., the Defendants had attended to be cross-examined and the Defendants’ counsel was requesting the release of a further $75,000 to complete the necessary preparation for the motion and to attend the motion. McEwan J. granted the Defendant’s request and ordered the release of $75,000 in order to allow the Defendants to prepare for and attend the scheduled motions.

[8] In releasing the sum requested, McEwen J. found that the circumstances surrounding the motion before him were not the same as the circumstances when Penny J. dismissed the Defendants’ motion to vary on November 17, 2014. Since that time, the Defendants had attended for cross-examinations. He also noted that Penny J. had allowed for the release of funds for legal fees and he found that the “amount sought is a modest one when one considers legal work to be done and the amount of assets frozen by the Mareva Injunction.”

[9] In my view, McEwen J.’s order is not in conflict with the order of Penny J. of November 17, 2014. As McEwen J. found, Penny J.’s November 17, 2014 order was made in a different set of factual circumstances. An order that applies the same set of principles to a different factual matrix is not a conflicting decision. In this regard, McEwen J.’s order is consistent with Penny J.’s January 2015 order that did allow for the release of funds to pay the Defendants’ legal fees.

[10] I also find that the Defendants do not meet the second branch of the test under Rule 62.02(4)(a). The order in question involves the application of established principles to a set of facts. There is no issue of principle that involves the need for the Divisional Court to clarify the law.

[11] There is also no reason to doubt the correctness of McEwen J.’s order, which was a discretionary one. Even if there were reason to doubt the correctness of the order sought to be appealed, the proposed appeal does not raise an issue that goes beyond the interests of the immediate parties and that involves questions of general or public importance relevant to the development of the law and the administration of justice.

[12] For these reasons, the motion for leave to appeal is dismissed. The Defendants have requested their costs of this motion fixed in the amount of $10,637.86. The Plaintiffs, contrary to the direction of the court, have not filed any costs submissions. The Plaintiffs shall have 10 days from the release of this endorsement to file written submissions concerning the Defendants request for costs.

H. SACHS J.

Date: 20150717