CITATION: 2399194 Ontario Corporation v. Yeretsian, 2017 ONSC 2810
DIVISIONAL COURT FILE NO.: 134/17
DATE: 20170508
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: 2399194 ONTARIO CORPORATION v. ANNIE YERETSIAN and others
BEFORE: NORDHEIMER J.
COUNSEL: B. Belmont, for the moving party/respondent, Canada Capital Corporation Inc.
No other parties responding
HEARD at Toronto: written submissions
E N D O R S E M E N T
[1] The defendant, Canada Capital Corporation Inc., seeks leave to appeal from the order of Corbett J., dated December 22, 2016, in which the motion judge dismissed Canada Capital’s motion to vary earlier orders that the motion judge had made regarding the terms and conditions for the sale of a property under a power of sale. In particular, Canada Capital sought a variation that would remove the term that the proceeds of sale be paid into court and have it replaced by a term that would allow for a vendor take back mortgage. I note that none of the other parties to this proceeding filed any material on this motion, either in support of, or opposition to, the motion.
[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.
For the purposes of this motion, Canada Capital relies on both tests.
[3] I would not grant leave to appeal in this case. In terms of the first test, there are three problems. First, is that the moving party has failed to point to any conflicting case on a matter of principle. The fact that different cases have reached different conclusions on when it is appropriate to require proceeds of sale to be paid into court does not constitute those cases as conflicting as that term is used in r. 62.02(4)(a): Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.). Second, is the fact that, even if the moving party could establish such a conflict, the fact is that the order, requiring the proceeds of sale to be paid into court, was made on May 27, 2015 – more than eighteen months ago. No issue was taken with the jurisdiction of the motion judge to make the order at that time. Instead, the moving party waited, for more than eighteen months, and then sought to vary the order. It is only after the variance was denied that the moving party sought to challenge the original order. The moving party is well out of time to do so. Third, in terms of the second branch of the first test, the moving party has not satisfied me that it is desirable for leave to appeal to be granted. The motion judge has been managing this matter for a considerable period of time. His orders, collectively, involve the exercise of his discretion. It should be self-evident that different judges will exercise their discretion differently depending on the particular facts before them. I see nothing desirable in having a panel of the Divisional Court review the exercise of the discretion that is vested in the motion judge.
[4] This latter point essentially determines the outcome in terms of the moving party’s reliance on the second test. I do not have any basis to question the correctness of the order made. As I have said, it is clear that the motion judge has been dealing with this matter for a considerable period of time. His appreciation of the issues, and the appropriate way to address them in terms of the power of sale proceedings, are entitled to deference.
[5] In any event, the second branch of the second test is not met because the issue raised in this case is not of sufficient importance that leave to appeal ought to be granted. While it may be a matter of some importance to certain of the parties, it does not raise any question that is of importance to the public or to the administration of justice generally: Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).
[6] Finally, I should address two other assertions raised by Canada Capital. One is that the motion judge “cut off” Canada Capital’s counsel at the hearing and did not allow him to make his full submissions. The other is that the motion judge exhibited a reasonable apprehension of bias towards Canada Capital. I am unable to find any foundation in the record for either of those assertions. On the point about the time for the motion, there was an unfortunate mix-up in the court office regarding the scheduling of the motion. The motion judge remedied the problem, in the best way that he could, in light of his time constraints. In the end result, the parties had sufficient time to make their oral submissions and, as well, they had filed considerable written material. Further, a review of the transcripts from the two days shows that Canada Capital’s counsel, in particular, was given adequate time to make his submissions. Even if counsel does not believe that was the case, his assertion appears to be based on the faulty premise that counsel are entitled to as much of the court’s time to argue a matter as counsel decide. It is not counsel who decide on the appropriate allocation of the court’s time. It is the court that does so.
[7] In terms of the second assertion, the transcripts do not demonstrate any bias or unfairness in the manner in which the motion judge dealt with the matter. The suggestion that two misstatements in the motion judge’s endorsement (that it was the first mortgagee who was selling the property when in fact it was the second mortgagee, and that the sale price was $9.4 million when in fact it was $9.1 million), demonstrate that the motion judge had not properly considered the material filed, is without merit. I repeat that the motion judge had been dealing with this matter for many months. He was entirely familiar with it. The presence of what is clearly inadvertent (and inconsequential) errors in an endorsement demonstrates nothing more than the reality that this matter had to be dealt with in circumstances where there were considerable time pressures. One unfortunate consequence of the constant time pressures in this court are that such errors will occur. Indeed, they are likely inevitable. The fact of such errors does not demonstrate anything more than that reality.
[8] The motion for leave to appeal is dismissed.
[9] In light of the fact that none of the other parties to this proceeding participated in this motion in any way, I would make no order as to costs.
NORDHEIMER J.
DATE: May 8, 2017