CITATION: Belokon v. The Kyrgyz Republic, 2016 ONSC 995
DIVISIONAL COURT FILE NO.: 486/15
court file no.: CV-015-10890-00CL
DATE: 20160211
SUPERIOR COURT OF JUSTICE – ONTARIO
RE:
Valeri Belokon
Applicant/Responding Party
- and -
The Kyrgyz Republic, Kyrgyzaltyn JSC and Centerra Gold Inc.
Respondents/Moving Party
BEFORE: Stewart J.
COUNSEL: P. Cavanagh and C.A. Snider, for the Applicant/Responding Party
R.A. Rubinoff and J. Siwiec, for the Respondent The Kyrgyz Republic
M. Latella, C. Doria and M. Saunders, for the Respondent/Moving Party Kyrgyzaltyn JSC
D.R. Byers and V. Voakes, for the Respondent Centerra Gold Inc.
HEARD: In Writing
ENDORSEMENT
[1] Kyrgyzaltyn JSC (“KJSC”) seeks leave to appeal to the Divisional Court from the order of Matheson J., dated September 8, 2015.
[2] KJSC moved before Matheson J. to set aside a Mareva injunction ordered by Wilton-Siegel J. on March 5, 2015 or, alternatively, to vary the Mareva injunction on grounds of inadequate factual foundation and material non-disclosure.
[3] Although KJSC argued on the motion that there had been material non-disclosure, counsel for Valeri Belokon asserts that KJSC did not take the position on the motion before Matheson J. that any such non-disclosure had been knowing or wilful on the part of Belokon or his counsel.
[4] By order dated September 8, 2015, Matheson J. varied the Mareva injunction and set it aside, subject to further order of the Court, on terms that did not preclude Belokon from bringing a fresh motion for injunctive relief.
[5] In her reasons for setting aside the Mareva injunction, Matheson J. accepted KJSC’s submission that subsequent appeal decisions made the original evidentiary foundation for the order insufficient. She did not accept, however, that the Mareva injunction should be set aside for material non-disclosure.
[6] Costs of the motion were awarded to KJSC in the amount of $85,729.62.
[7] Notwithstanding that KJSC succeeded on its motion to set aside the Mareva injunction on one of the grounds raised, it has brought the within motion for leave to appeal the order. KJSC submits that Matheson J. erred by setting aside the Mareva injunction for reasons that accepted only one of the two grounds upon which KJSC had relied, that she should have accepted what KJSC now casts as intentional non-disclosure, and that she ought to have made an order precluding Belokon from bringing any future motion for similar relief.
[8] KJSC also seeks leave to appeal the motion judge’s disposition of costs.
Test for Leave to Appeal
[9] The test for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 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.
[10] 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.).
[11] Under Rule 62.02(4), 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 he 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.); Ash v. Lloyd’s Corp. (1992) 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), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J.); and Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.).
[12] Leave to appeal a decision of a motions judge as to costs, a discretionary decision, is likewise not easily granted in light of these requirements.
Analysis
[13] With respect to the test under Rule 62.02(4)(a), I consider that KJSC has not shown any satisfactory reason that it is desirable that leave be granted. The motion judge’s order, insofar as it reflects her agreement with one principal argument of KJSC and does not prevent Belokon from bringing a future motion for injunctive relief (subject to arguments of res judicata, abuse of process or such other consideration as may apply), was based upon the facts as presented by the parties and within her discretion to make.
[14] In view of this determination, it is therefore unnecessary to address the first branch of the test.
[15] With respect to the test under Rule 62.02(4), I do not consider that the proposed appeal involves matters of such importance that leave should be granted. The issues are specific to the parties and do not raise questions of general or public importance.
[16] Having so found, it is unnecessary to address the first branch of that test.
[17] KJSC therefore fails to meet either test for the granting of leave to appeal the substantive result of the motion.
[18] I would make the same determination insofar as KJSC seeks to appeal the motion judge’s disposition of costs. Neither articulation of the test for granting leave has been met. The motion judge’s decision in this regard falls within the scope of proper exercise of broad discretion that applies to the subject of costs. There is no adequate reason shown by the moving party to make it desirable that leave be granted, nor is there any issue on appeal that involves a question of general or public importance.
Conclusion
[19] For these reasons, the motions for leave to appeal these decisions are dismissed.
Costs
[20] The parties have agreed on the costs to be awarded on these motions. Accordingly, KJSC shall pay to Belokon the amount of $12,000.00, inclusive of disbursements and applicable taxes, on the substantive leave to appeal motion. KJSC shall pay to Belokon the sum of $6,000.00, inclusive of disbursements and applicable taxes, on the motion for leave to appeal costs.
Stewart J.
Date: February 11, 2016