Court File and Parties

CITATION: Baradaran v. Tarion Warranty Corporation, 2015 ONSC 7333

COURT FILE NO.: DC 15-345

DATE: 20151124

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Manoucher Baradaran, Plaintiff/ Applicant

AND:

Tarion Warranty Corporation et al, Defendants/ Respondents

BEFORE: H. Sachs J.

COUNSEL: Manoucher Baradaran on his own behalf

Howard L. Shankman, Counsel, for the Defendants/ Respondents

HEARD: In writing

ENDORSEMENT

[1] The Applicant seeks leave to appeal from the order of Myers J. dated November 26, 2014 in which he ordered that the Applicant’s action against the Respondents be stayed until such time as the Applicant paid certain costs orders.

[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] There is no good reason to doubt the correctness of the order made by Myers J nor has the Applicant presented any authority to suggest that there are conflicting decisions on the issue that require resolution by the Divisional Court.

[6] Rule 57.03 (1) grants the court the discretion to stay a party’s proceeding if a party has failed to pay costs and Rule 60.12 authorizes a court to stay a party’s proceeding where a party has failed to comply with an interlocutory order.

[7] In granting the order he did the motion judge considered all of the relevant factors and case law, including the fact that the Applicant had offered no reasonable explanation for his non-payment and that the merits of the Applicant’s action were “thin at best.”

[8] For these reasons the motion for leave to appeal is dismissed. The parties may make brief submissions to me in writing on the question of the costs of this motion. The Respondents shall file their submissions within 10 days of the release of this endorsement and the Applicant shall have 10 further days to file a response.

Sachs J.

Date: November 24, 2015