McCain v. Melanson, 2017 ONSC 375

DIVISIONAL COURT FILE NO.: DC-523/16

DATE: 2017-01-17

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Eleanor Marie Norrie McCain, Applicant (Moving Party)

AND:

Jeffrey James melanson et al, Respondents

BEFORE: H. Sachs J.

COUNSEL: Gavin MacKenzie, Brooke Mackenzie, Donald Jack, Pamela Miehls and Jacqueine Mills, for the Applicant (Moving Party)

Jonathan Lisus and Paul Mitchell,, for the Respondents Harold Niman and Niman Gelgoot & Associates LLP, Respondents

HEARD at Toronto: In writing

ENDORSEMENT

[1] This is a motion for leave to appeal the decision of Kiteley J. dated October 18, 2016, in which she dismissed the Applicant’s motion for an order disqualifying Harold Niman and Niman Gelgoot & Associates LLP (collectively “Niman”) from acting as counsel for the Respondent in this proceeding and granted Niman’s cross-motion to strike certain material that the Applicant had included in her motion record on the disqualification motion.

[2] The test for granting leave to appeal under Rule 62.02(4) 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.

[3] 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.).

[4] Under Rule 62.02(4)(b), 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 the 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), 1992 7652 (ON SC), 8 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.); Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.).

[5] In this case the Applicant seeks leave to appeal under the second branch of the Rule, namely Rule 62.02(4)(b).

[6] On the disqualification motion, the Applicant concedes that the motion judge correctly identified the governing test for disqualification, but alleges that she misapplied that test by not considering whether the Applicant had shown a sufficient relationship between the prior retainer between Niman and the Applicant’s ex-husband and the current retainer between the Niman and the Respondent. Instead, according to the Applicant, the motion judge considered whether there was a sufficient relationship between the Applicant and Niman.

[7] Reading the decision of the motion judge as a whole it is clear that she directed her mind to the right question – namely the sufficiency of the relationship between the two retainers and the two proceedings that underlie those retainers. In doing so, she looked in detail at the pleadings and evidence in the earlier proceeding and found that the Applicant had failed to discharge her burden of showing a sufficient relationship between the two proceedings to displace the Respondent’s right to choose his own counsel.

[8] The Applicant also alleges that the motion judge relied on “irrelevant factors” in concluding that that the Applicant had failed to establish a basis to disqualify Niman. I find that there is no merit to this submission. Even if there were merit to this argument, it is does not raise an issue that extends beyond the immediate interest of the parties.

[9] In the end, the motion judge’s decision on the disqualification motion was a fact-specific discretionary interlocutory decision involving the application of established legal principles. The decision as a whole raises no issue of sufficient importance to grant leave to appeal.

[10] With respect to the motion judge’s decision on the motion to strike, I find that there is no reason to doubt the correctness of that decision. The motion judge found that 7 letters were written in the context of exploring settlement and thus were privileged. In doing so, she applied the correct test for establishing settlement privilege.

[11] The Applicant contends that the letters do not meet the third element of the test for establishing settlement privilege (the purpose of the communication must be to attempt to effect a settlement) because, according to her, there was no genuine attempt to effect a settlement. To have merit, the assertion must rise to the level of establishing that the communication was not made in good faith. The Applicant produced no evidence to support her claim in this regard, other than the fact that no settlement was actually achieved.

[12] The third element of the test for settlement privilege is concerned with whether the communication contains an element of compromise. The motion judge reviewed the letters and found that they did. This was a decision that she was entitled to make and one that again, does not raise any issue that extends beyond the interests of the parties.

[13] The Applicant also submits that the motion judge erred when she failed to find that the Respondent had waived settlement privilege. The onus of proving waiver rests with the party alleging waiver. The motion judge reviewed the evidence on the issue and found that the Applicant had not met the onus of proving waiver. This was a conclusion that was clearly available to her on the evidence before her. It is also a conclusion that does not raise any issue of such importance that leave to appeal should be granted.

[14] For these reasons the motion for leave to appeal is dismissed. As agreed by the parties, as the successful party, the Respondents on the motion are entitled to their costs fixed in the amount of $10,000, all inclusive.

Sachs J.

Date: January 17, 2017