CITATION: Rana v. Unifund Assurance Company 2016 ONSC 5177

DIVISIONAL COURT FILE NOs.: 218/16

DATE: 20160816

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: KRIS RANA v. UNIFUND ASSURANCE COMPANY

BEFORE: NORDHEIMER J.

COUNSEL: K. Rana in person

E. ten Cate for the respondent

HEARD at Toronto: written submissions

E N D O R S E M E N T

[1] The plaintiff, Kris Rana, seeks leave to appeal from the decision of Dunphy J. dated April 7, 2016. The background to this matter is somewhat confused given the history of the proceeding. It appears that there were in fact two orders made by Dunphy J. on April 7, 2016. One order dismissed the plaintiff’s motion to vary an earlier order of Dow J. and included an order that the plaintiff pay costs of that motion in the amount of $4,500. The second order stayed the plaintiff’s action pending her payment of various other outstanding costs orders.

[2] It is not, in my view, necessary for the purposes of this motion for leave to appeal to set out the background facts in any great detail. Those details are set out in the endorsement of Dunphy J. and I see no reason to repeat them.

[3] In order to obtain leave to appeal, a moving party must satisfy one of the two tests set out in r. 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that reads:

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 terms of the first test for leave to appeal, there are no conflicting decisions involved in this matter. Consequently, the first test for leave to appeal is not met.

[5] In terms of the second test for leave to appeal, there is nothing in the material before me that would demonstrate any reason to doubt the correctness of the order(s) in issue. Both orders are the types of orders that involve the exercise of judicial discretion. The basis upon which an appellate court can interfere with a judge’s exercise of discretion is narrow. It was summarized in the following terms by L’Heureux-Dubé J. in Dagenais v. Canadian Broadcasting Corp. 1994 39 (SCC), [1994] 3 S.C.R. 835 at para. 154(QL):

While it is true that appellate courts should not in general interfere with a trial judge's exercise of discretion, an appellate court can interfere where that discretion has not been exercised judicially and judiciously. Specifically, an appellate court can overturn a discretionary decision of a trial judge where it is made, inter alia, on wrong principles, a misapprehension of significant facts or in a non-judicial manner.

[6] I am unable to find anything in the record that would suggest that Dunphy J. exercised his discretion based on wrong principles or a misapprehension of significant facts or in a non-judicial manner. To the contrary, Dunphy J. gave detailed reasons for his conclusions. Further, the issues raised underlying the orders that Dunphy J. made are not matters that are of such importance that I would grant leave to appeal so the second prong of the second test is not met in any event.

[7] The motion for leave to appeal is dismissed. The plaintiff shall pay the defendant the costs of the motion fixed at $2,500.00 payable within thirty days.

NORDHEIMER J.

DATE: August 16, 2016