Court File and Parties

CITATION: Murray v. Star, 2015 ONSC 6658

DIVISIONAL COURT FILE NO.: 378/15

DATE: 20151029

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Murray v. Star

BEFORE: Swinton J.

COUNSEL: Edward J. Babin and Cynthia L. Spry for the Plaintiffs (Responding Parties) Allison Taylor for the Defendants (Moving Parties)

HEARD at Toronto: in writing

ENDORSEMENT

[1] The defendants David Star, Pier 21 Asset Management Inc. and 8165246 Canada Inc. seek leave to appeal from the order of McEwen J. dated July 17, 2015. In that order, the motions judge struck a number of paragraphs of the plaintiffs’ statement of claim with leave to amend, because the paragraphs were irrelevant, pleaded evidence or constituted argument. He dismissed the balance of the defendants’ motion, brought under rules 21.01, 25.06 and 25.11 of the Rules of Civil Procedure.

[2] The defendants argue that the motions judge erred in a number of ways: in considering the Further Amended Statement of Claim, in granting leave to amend after striking certain paragraphs, and in failing to deal with the allegation of breach of fiduciary duty.

[3] In order to obtain leave to appeal, the moving party must satisfy one of the two tests set out in rule 62.02(4) of the Rules of Civil Procedure:

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.

[4] In my view, the defendants have not met the criteria for leave to appeal. First, they have not identified any conflicting court decision on comparable facts, nor is there good reason to doubt the correctness of the order.

[5] The plaintiffs concede that the motions judge erred in saying that the defendants had not challenged the plaintiffs’ fiduciary duty claim. However, that does not lead to the conclusion that there is good reason to doubt the correctness of the order dismissing the balance of the motion. An appeal is from the order, not the reasons (Grand River Enterprises v. Burnham, 2005 6368 (Ont. C.A.) at para. 10).

[6] The test to strike a claim is onerous: it must be plain and obvious that the claim would fail (Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959). Given the facts pleaded in the present case, it is not plain and obvious that the fiduciary duty claim would fail, even if it is novel (see Harris v. Leikin Group Inc., 2013 ONSC 1525 at para. 402).

[7] The motions judge allowed the plaintiffs to amend the allegations with respect to the employment agreement and the shareholders agreement as they applied to the allegation of breach of fiduciary duty. It appears that they are also linked to the oppression claim. The defendants have not demonstrated that there is good reason to doubt the correctness of this aspect of the order.

[8] Second, and most importantly, the proposed appeal does not raise issues of sufficient importance that leave to appeal ought to be granted. A 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), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div.Ct.). There is no issue of general or public importance raised in the proposed appeal, as the motions judge has made no determination of any legal issues related to the breach of fiduciary duty or oppression claims.

[9] Accordingly, the motion for leave to appeal is dismissed. The costs of the motion for leave to appeal are fixed at $7,500.00 inclusive of disbursements and HST payable to the plaintiffs within 30 days.

Swinton J.

Released: October 29, 2015