CITATION: Nithiananthan v. Quash, 2016 ONSC 7583

DIVISIONAL COURT FILE NOs.: 457/16

DATE: 20161205

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: YAMUNAKUMARI NITHIANANTHAN v. JAMES QUASH and others

BEFORE: NORDHEIMER J.

COUNSEL: T. Robinson & K. Byers, for the moving party/plaintiff J. Gates & K. Metcalfe, for the respondents/defendants, James Quash and Quinton Nathaniel Bennett

HEARD at Toronto: written submissions

E N D O R S E M E N T

[1] The plaintiff seeks leave to appeal from the order of Dow J., dated September 6, 2016, that dismissed an appeal from the order of Master Mills, dated June 6, 2016. The Master’s order had dismissed the plaintiff’s motion for leave to issue a certificate of pending litigation.

[2] 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.

[3] The first test for leave to appeal is not pressed by the plaintiff but, in any event, there are no conflicting decisions involved in this matter. Consequently, the first test for leave to appeal is not met.

[4] In terms of the second test for leave to appeal, I am not satisfied that there is a good reason to doubt the correctness of the motion judge’s order, that affirmed the Master’s order on appeal. The order in question involves the exercise of judicial discretion, as the wording of s. 103(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43 makes clear. The basis upon which an appellate court can interfere with a judge’s exercise of discretion is narrow: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 at para. 154.

[5] Of more importance, however, is the fact that the issues raised respecting these orders 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. Despite the plaintiff’s efforts to enunciate issues in her factum that are said to be of general importance, the fact is that the issues raised are specific to the facts of this case. The importance referred to in the second prong of the second test refers to “matters of general importance, not matters of particular importance relevant only to the litigants” - Greslik v. Ontario Legal Aid Plan (1988), [65 O.R. (2d) 110 (Div. Ct.)].

[6] The motion for leave to appeal is dismissed. In light of the parties’ costs submissions, I fix the costs of the motion at $10,000, all inclusive, payable by the plaintiff to the defendants, James Quash and Quinton Nathaniel Bennett, within thirty days.

NORDHEIMER J.

DATE: December 5, 2016