CITATION: Apollo Real Estate Limited v. Streambank Funding Inc., 2017 ONSC 1667
DIVISIONAL COURT FILE NO.: 625/16
DATE: 20170314
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: APOLLO REAL ESTATE LIMITED v. STREAMBANK FUNDING INC. O/A THE EQUITY CENTRE, GARY CULLEN and IRWIN BELITSKY
BEFORE: NORDHEIMER J.
COUNSEL: William Malamas, in person, for the moving party/plaintiff[^1]
A. MacKay, for the responding party/defendant, Gary Cullen
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 decision of McEwen J. dated December 12, 2016, in which the motion judge set aside a default judgment that had been granted by Cameron J. on December 22, 2003.
[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.
The plaintiff relies only on the second test, that is, good reason to doubt the correctness of the order and the proposed appeal involves matters of importance.
[3] The basis upon which the plaintiff contends that there is good reason to doubt the correctness of the decision below is that there is exists, on the record, a reasonable apprehension of bias on behalf of the motion judge. I see no merit in that contention. First, there is no evidence that Mr. Malamas raised this issue before the motion judge. It is generally unfair for a party to advance a claim of bias, on an appeal, when the party has not raised that issue before the decision maker, who is alleged to be biased, and provided an opportunity for the decision maker to respond.
[2] Second, there is no evidence that would begin to satisfy the test for a finding of a reasonable apprehension of bias. That test is well recognized. It is set out in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369 where de Grandpré J. said, at p. 394:
In the words of the Court of Appeal, that test is “what would a informed person, viewing the matter realistically and practically--and having thought the matter through--conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.
[4] In order to make a finding of bias, the grounds alleging bias must be substantial and there must be cogent evidence to support them in order to rebut the strong presumption of impartiality: Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General) 2015 SCC 25. In this case, that threshold has clearly not been met.
[5] Further, and in any event, the issue of whether the default judgment should have been set aside does not raise an issue of such importance that, in my opinion, leave to appeal should be granted. While the issue might be of some importance to the parties, that is not what the test requires: Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.). Rather, the plaintiff must show that the issue is of general importance, either to the public or to the law generally. The plaintiff has failed to make that showing.
[6] The motion for leave to appeal is dismissed.
[7] The defendant, Gary Cullen, sought costs of the motion on a substantial indemnity basis based on the fact that an allegation of bias was made by the plaintiff. In these particular circumstances, I am not satisfied that that factor alone warrants an award costs on the substantial indemnity scale. Rather, the normal partial indemnity scale should apply. In light of the costs submissions filed, I fix the costs of the motion at $7,500.00, inclusive of disbursements and HST, payable by the plaintiff to the defendant, Gary Cullen, within thirty days.
NORDHEIMER J.
DATE: March 14, 2017
[^1]: On September 25, 2000, Mr. Malamas obtained an order granting him leave to represent the plaintiff.