CITATION: GAC International, LLC v. Orthoarm Inc., 2017 ONSC 724

DIVISIONAL COURT FILE NO.: 554/16

DATE: 20170130

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: GAC INTERNATIONAL, LLC v. ORTHOARM INC.

BEFORE: NORDHEIMER J.

COUNSEL: G. Luftspring & A. Sanche, for the moving party/defendant A. Aucoin & A. Turco, for the responding party/plaintiff

HEARD at Toronto: written submissions

ENDORSEMENT

[1] The defendant seeks leave to appeal from the decision of Corbett J. dated November 8, 2016 in which the motion judge dismissed, with one exception, the defendant’s motion to require the plaintiff to answer certain questions asked on its examination for discovery.

[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 defendant 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] In my view, that test for leave to appeal is not met in this case. I do not have good reason to doubt the correctness of the motion judge’s order. The motion judge correctly applied the principles respecting the relevance of questions on an examination for discovery. More importantly, the motion judge also applied the principle of proportionality, set out in rule 1.04(1.1), that has recently been added to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as an overriding consideration in making any order. As a result, cases decided prior to the addition of rule 1.04(1.1) must be applied cautiously.

[4] Further, and in any event, the issue of whether the questions asked should, or should not, be answered, does not raise an issue of such importance that, in my opinion, leave to appeal should be granted. Indeed, it is hard to think of an issue that would, except in extraordinary circumstances, fit more clearly in the category of one of importance to the litigants but not of general importance, than answers to individual questions on an examination for discovery: Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.).

[5] Consequently, the motion for leave to appeal is dismissed. The defendant will pay to the plaintiff the costs of the motion, fixed at the agreed amount of $3,000, inclusive of disbursements and HST, within thirty days.

NORDHEIMER J.

DATE: January 30, 2017