CITATION: Wong v. Lee, 2016 ONSC 1043

COURT FILE NO.: CV-11-105816-00

DATE: 20160211

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

OSCAR WONG,

Respondent (Plaintiff)

– and –

JENNIFER LI, also known as JENNIFER HO,

RAYMOND HO, also known as RAY HO,

JASMINE YU, also known as JASMINE KIT MANY YU, also known as KIT MAN YU, also known as JASMINE SHUM , also known as JASMINE KIT MAN SHUM,

GRACE LEE, also known as GRACE MAN CHEN LEE, also known as MAN CHEN LEE, also known as GRACE MAN CHEN CHAN,

MAUREEN FRENCH, also known as MAUREEN THEOLA FRENCH,

RAGAVAN THAMBY, and

CARLTON STEWART, also known as CARL STEWART

Appellants (Defendants)

Steve Bellissimo, for the Respondent (Plaintiff)

Matthew Wise, for the Appellants (Defendants)

HEARD: February 10, 2016 In Writing

The Honourable Justice S. J. Woodley

RULING ON MOTION FOR LEAVE TO APPEAL

Introduction

[1] The Defendant, Grace Lee seeks leave to appeal from the order of Justice R. Mackinnon dated December 22, 2015 and related cost order dated January 14, 2016. In the order dated December 22, 2015, the motion judge dismissed the motion by the Defendant Grace Lee to terminate the ex parte Mareva injunction Order of Justice Sutherland dated August 6, 2015 and by the January 14, 2016 order awarded costs to the Plaintiff in the amount of $33,500.

[2] Grace Lee alleges that the motion judge erred in his decision in many aspects of the facts as well as the law and alleges that there is good reason to doubt the correctness of the Orders in question. Grace Lee further alleges that the appeal involves matters of importance such that leave ought to be granted.

Test for Leave to Appeal

[3] 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.

[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 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.).

Analysis

[6] I have determined that leave to appeal should not be granted in the present case.

[7] First, as noted above, 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.

[8] In the present case the Defendant does not point to any errors in the finding of any specific facts relied upon by the motion judge. Instead the Defendant reiterates the evidence that was placed squarely before the motion judge and asserts that the motion judge’s interpretation of the evidence as a whole constitutes an error of fact and law.

[9] Even if I were to agree with the Defendant’s submissions (which I do not) this is not sufficient to allow an appeal. The test for granting leave to appeal requires that I must also find that the proposed appeal involves matters of such importance that leave to appeal should be granted.

[10] While the issues involved are important to the parties – the issues are not important to the administration of justice and do not extend beyond the scope of the lawsuit. Justice Mackinnon, upon review of all of the evidence and after a hearing of motion on its merits, determined that the ex parte Order of Justice Sutherland should continue. While the Defendant argues that the injunction may result in a “profound unfairness” to the Defendant – the failure to grant the injunction may also result in “profound unfairness” to the Plaintiff. There is always a risk that an injunction will result in unfairness (profound or otherwise) and this fact in and of itself is not an appealable matter.

[11] With respect to the allegation that the motion judge’s finding of inconsistency in the Defendant’s testimony amounted to a clear error of fact and in turning his mind to the Defendant’s credibility was a misdirection of the evidence, I disagree. Inconsistencies weigh against general credibility. Justice Mackinnon provided a careful analysis of the evidence reached a conclusion based on his review of the evidence. An essential part of reviewing the evidence is to note inconsistencies and weigh such inconsistencies against general credibility. This task which was completed by the motion judge was not directed to onus of proof but to a review of the evidence as a whole.

[12] Second, I am not satisfied that there is a conflicting decision of another judge or court in Ontario or elsewhere. In particular, I note that the motion judge relied upon the necessary criteria detailed in Chitel v. Rothbart (1982), O.J. No. 3540 in reaching his decision. He made a careful and detailed review of the evidence and correctly applied the test articulated in Chitel v. Rothbart and on the facts before him determined that the no material information was omitted in support of the Mareva order, adequate and proper inquiries were made before moving to enjoin, the particulars of the claims were clearly stated, the Defendant had assets in the jurisdiction and the motion judge found that there is demonstrated a real risk that they will be dissipated.

[13] In summary, I am not satisfied that there is reason to doubt the correctness of the decision reached by the motion judge. After engaging in a consideration of the evidence before him the motion judge arrived at a conclusion that can be wholly justified. The fact that a different motion judge might have assigned different weight to the evidence or drawn different inferences does not impact the correctness nor does the proposed appeal involve matters of such importance that leave to appeal should be granted.

[14] With respect to the related January 14, 2016 costs order, again I have determined that leave to appeal should not be granted. The motion judge heard and considered argument concerning the request for costs. His Honour received and reviewed submissions and considered the application of Rules 49 and 57.03(1) and s. 131 of the Courts of Justice Act. The costs sought by the Plaintiff totalled approximately $54,000 on a full indemnity basis and this argument was rejected. The motion judge properly considered the objectives in fixing costs and, the principle of indemnity and the amount of costs an unsuccessful party could reasonably be expected to pay in the context of this proceeding which included time spent before Vallee J. on November 12, 2015, when the motion was initially scheduled, time spent in preparation and on cross-examination. After a careful review and consideration of the applicable principles involved in fixing costs and the time spent in this particular proceeding - the total costs awarded were $33,500, inclusive. I have no reason to doubt the correctness of the decision nor do I believe that such an award is so excessive as to bring the administration of justice into disrepute.

Disposition

[15] For the above reasons, the motion for leave to appeal the order dated December 22, 2015 and related cost order dated January 14, 2016, is denied. If the parties are unable to agree on the issue of costs, I will receive brief submissions in writing on that issue according to the following schedule:

a. The Plaintiff/Respondent shall serve and file submissions on costs, limited to three typewritten pages, on or before March 20, 2016;

b. The Defendant/Moving Party shall serve and file responding submissions, limited to three typewritten pages, on or before April 5, 2016; and

c. The Plaintiff/Respondent shall serve and file any reply submission, limited to one typewritten page, on or before April 14, 2016.

Justice S. J. Woodley

Date: February 11, 2016