CITATION: Chavdarova v. Ben Hanuka and Law Works PC, 2015 ONSC 7394
COURT FILE NO.: DC-15-118-ML
DATE: 2015 11 30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lyudmila Chavdarova and Ben Hanuka and Law Works PC
BEFORE: Fragomeni, J.
COUNSEL: L. Chavdarova, self-represented
B. Hanuka, for Ben Hanuka and Law Works PC
HEARD: Leave to appeal in writing
E N D O R S E M E N T
[1] The plaintiff, Lyudmila Chavdarova, brings a motion for leave to appeal two interlocutory orders. The two interlocutory orders are as follows:
Order of Justice Gibson dated September 17, 2015, dismissing her summary judgment motion and fixing costs at $3,000.00 to be paid within 90 days.
Order of Justice Fitzpatrick dated October 14, 2015, dismissing her motion to set aside the costs order of Justice Gibson of September 17, 2015. Justice Fitzpatrick ordered the plaintiff to pay $1,500.00 for costs of the motion before him within 60 days.
Test for Leave to Appeal
[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.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.). 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.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).
Endorsement of Justice Gibson, dated September 17, 2015:
[5] In his endorsement of September 17, 2015, Justice Gibson sets out the following:
The action and counterclaim in this matter are expected to proceed to trial imminently. The trial date will likely be scheduled after the upcoming Pre-Trial Conference on September 22, 2015.
Mr. Hanuka contends that Ms. Chavdarova’s actions in bringing the motion for summary judgment are not consistent with Rule 48.04 and that a summary judgment in this case is not likely to provide a proportional, more expeditious and less expensive means to achieve a just result. I concur with this view. Leave is not granted to bring the motion for summary judgment.
In any event, given the actual complexity of this matter and its contentiousness, upon review of the written material filed, it is evidence to me that this matter surely does not meet the “no genuine issue requiring a trial” test under Rule 20.04.
Therefore, I am of the view that the ends of justice in this matter would be best served by the parties’ attendance at the scheduled Pre-Trial on September 22.
The Plaintiff’s motion for summary judgment is dismissed. Costs for today’s motion is fixed at $3,000, to be paid within 90 days.
Endorsement of Justice Fitzpatrick, dated October 14, 2015:
[6] In his endorsement of October 14, 2015, Justice Fitzpatrick sets out the following:
The Plaintiff brings motion to set aside the costs ordered by Gibson J. on September 17, 2015, after he dismissed the Plaintiff’s summary judgment motion. The Plaintiffs’ materials before me and her submissions also challenge the substance of Gibson J.’s decision (i.e., to dismiss her motion).
The Plaintiff relies on Rule 37.14. This rule does not apply here (this is not a situation where an order was made without notice or where a party failed to attend). If the Plaintiff is looking to appeal Gibson J.’s costs order and/or decision to dismiss her motion, then she needs to seek leave to do so and the appeal would be to the Divisional Court (see: s. 19(1)(b) of C.J.A.).
Plaintiff’s motion dismissed.
Defendant seeks costs of $2,000.00 on partial indemnity scale, or $2,800.00 on substantial indemnity scale. This is not a case for substantial indemnity. This motion was not complicated and argument brief. Costs ordered of $1,500.00 payable by the Plaintiff within 60 days.
Order per draft as amended and signed by me.
[7] I am not satisfied that the plaintiff has met her onus in establishing that either of the grounds for which leave may be granted are met.
[8] With respect to sub-section 4(a), the plaintiff has identified a decision of Quinn J., Fruitland Juices Inc. v. Custom Farm Service Inc. et al., 2012 ONSC 4902, which she says is in conflict with Justice Gibson’s endorsement. In that case, Quinn J. observed that leave is required to bring a summary judgment motion after an action has been set down for trial. In his view, the purposes of Rule 48.04(1) are: (1) to discourage actions from being set down for trial when they are not ready to be tried and (2) to avoid delay. Justice Quinn exercised his discretion to grant leave because the summary judgment motion had the potential to shorten or eliminate the trial. Justice Gibson’s endorsement is not inconsistent with Quinn J.’s reasoning. The plaintiff has not identified any decisions she says are inconsistent with Justice Fitzpatrick’s order. Furthermore, I am not satisfied that this is a case that it is desirable that leave to appeal be granted with respect to both Justice Gibson and Justice Fitzpatrick’s orders.
[9] As I indicated, I am not persuaded there is good reason to doubt the correctness of these orders nor am I persuaded that they are matters of such importance relevant to the development of the law or that transcends the interests of the parties (See Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110, (Div.Ct.); Rankin v. McLeod, Young, Weir Ltd. et al., 57 O.R. (3d) 569 (H.C.).
[10] In these circumstances, therefore, the motion for leave to appeal the interlocutory orders of Justice Gibson and Justice Fitzpatrick is dismissed.
Fragomeni J.
DATE: November 30, 2015
CITATION: Chavdarova v. Ben Hanuka and Law Works PC, 2015 ONSC 7394
COURT FILE NO.: DC-15-118-ML
DATE: 2015 11 30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lyudmila Chavdarova and Ben Hanuka and Law Works PC
BEFORE: Fragomeni J.
COUNSEL: L. Chavdarova, self-represented
B. Hanuka, for Ben Hanuka and Law Works PC
ENDORSEMENT
FRAGOMENI J.
DATE: November 30, 2015