CITATION: Mancinelli v. Royal Bank of Canada, 2017 ONSC 1526
DIVISIONAL COURT FILE NO.: 26/17
DATE: 20170306
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: JOSEPH S. MANCINELLI and others v. ROYAL BANK OF CANADA and others
BEFORE: NORDHEIMER J.
COUNSEL: I. Matthews, for the requesting parties/defendants
K. Baert, for the responding parties/plaintiffs
HEARD at Toronto: written submissions
E N D O R S E M E N T
[1] The plaintiffs have brought a motion for leave to appeal from the decision of Perell J. dated January 5, 2017, in which the motion judge ordered that the plaintiffs could not take any steps in furtherance of a subpoena, that they had obtained from the U.S. District Court for the Southern District of New York, authorizing them to take discovery from Bloomberg, a financial software, data, and media company, headquartered in New York City.
[2] Concurrent with bringing the motion for leave to appeal, the plaintiffs also filed an appeal with the Court of Appeal. These simultaneous appeals were brought because of a concern over whether the order of Perell J. was a final or an interlocutory order – an issue that has bedeviled the profession for decades.
[3] The defendants have now written to the court requesting that they be excused from filing responding material to the motion for leave to appeal, and that the motion be adjourned sine die, pending a determination by the Court of Appeal of the issue whether the order being appealed is final or interlocutory. Obviously, if it is determined that the order is final, there would be no need for the motion for leave to appeal to be heard and determined.
[4] The plaintiffs object to the defendants’ request. They suggest that it may be some period of time before the issue is addressed in the Court of Appeal and that the motion for leave to appeal should proceed in the normal course. The plaintiffs add that they “are unaware of any procedure” by which they can have the issue determined on an expedited basis.
[5] I would first note that it is always open to parties to seek an expedited hearing from the Court of Appeal. Whether the parties do so or not, there is nothing to be gained by requiring this court to read and determine the motion for leave to appeal, at this time. As a matter of general principle, where simultaneous proceedings of this type are launched, in two different courts, over the same issue, one of the two proceedings ought to be held in abeyance, pending a determination of the other. To do otherwise, would waste limited judicial resources and increase expense for all of the parties. Further, it seems appropriate, also as a general principle, for the proceeding in the higher court to go on first, since its determination will be binding on the lower court.
[6] Consequently, the defendants’ request is granted. The defendants are not required to file responding material, and the motion for leave to appeal is adjourned sine die. Once the issue, of whether the order in question is final or interlocutory, is decided by the Court of Appeal, the following shall occur. If the order is determined to be final, the plaintiffs will forthwith advise the Divisional Court office and deliver a Notice of Abandonment of their motion for leave to appeal. If the order is determined to be interlocutory, the defendants shall, within twenty-five days of that determination, so advise the Divisional Court office, and file their responding material on the motion.
NORDHEIMER J.
DATE: March 6, 2017