CITATION: Cilic v. Vivace Tavern Inc., 2015 ONSC 6169

DIVISIONAL COURT FILE NO.: 319/15

DATE: 20151007

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: DRAGOLJUB CILIC (Plaintiff/Moving Party)

and

VIVACE TAVERN INC. c.o.b. as THE HOUSE OF LANCASTER (Defendant/ Responding Party)

COUNSEL: Richard J. Worsfold, for the Moving Party

Robert B. Lilly, 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 plaintiff seeks leave to appeal to the Divisional Court from the Order of Pollak J. dated February 5, 2015, dismissing his Motion for summary judgment.

[2] The plaintiff was employed by the defendant House of Lancaster for 23 years. He was on leave from work for a period of time in 2013 following a lower leg amputation, a complication arising from diabetes. He sought to return to work in August 2013 and provided a doctor’s note stating that he was able to do so. The employer challenged the plaintiff’s fitness to return to work and ultimately refused to take him back. The plaintiff, Mr. Cilic, commenced action for wrongful dismissal and brought a motion for summary judgment. That motion was dismissed by the motion judge for oral reasons on February 5, 2015, essentially stating that there were so many facts in dispute, all of which required a trial to be fairly determined, that it would not be possible to resolve anything through the summary judgment process.

The Test for Granting Leave to Appeal

[3] The test for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure 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] The moving party relies on Rule 62.02(4)(b), arguing that there are good reasons to doubt the correctness of the decision of the motion judge.

[7] It is not necessary for me to determine whether there is reason to doubt the correctness of the decision. The test is two-fold. The moving party must also establish that the appeal raises issues of public importance beyond the interests of the individual parties. The motion fails on this aspect of the test.

[8] Counsel for the moving party posits two issues that he submits meet the test: (1) the requirement for summary judgment motions to be properly adjudicated so as to permit access to justice and the proportionate determination of disputes; and (2) the failure of the motion judge to provide adequate reasons, which he characterizes as an error in principle. Neither of these issues provide a basis for granting leave to appeal. The principles to be followed in summary judgment motions has recently been clarified by the Supreme Court of Canada in Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R.87. There are numerous cases from the Superior Court applying those principles. While the plaintiff may take issue about how the principles were applied in his particular case, that is a matter relating only to the facts of this case, and does not transcend the interests of these individual parties. Appellate intervention is not required to clarify or develop the law applicable to summary judgment motions. The law with respect to adequacy of reasons is also well-settled. This point may be an additional ground of appeal, but it is not a matter that would justify an appeal. Essentially, the plaintiff takes issue with the factual determinations made by the motion judge and argues that many if not all of the relevant issues in his action are resolvable without the need of a trial. The motion judge took a different view. However, the dispute is merely one between the parties. There are no issues of general public importance that warrant appellate intervention at this interlocutory stage.

[9] Accordingly, this motion for leave to appeal is dismissed. If the parties cannot agree on the appropriate costs disposition, written submissions may be made within 30 days.

MOLLOY J.

Date: October 7, 2015