CITATION: Roe v. Roe, 2017 ONSC 7249
DIVISIONAL COURT FILE NO.: 608/17 DATE: 2017/12/01
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
IN THE ESTATE OF BEVERLY GRACE ROE, Deceased
BETWEEN:
ROBERT MARK ROE
Charles B. Ticker, for the Applicant (Respondent in Appeal)
Applicant (Respondent on Appeal)
– and –
RICHARD THOMAS ROE, RANDALL SCOTT ROE AND RAYMOND CHRISTOPHER ROE
Andrew Rogerson, for the
Respondents/Appellants in Appeal
Respondents (Appellants in Appeal)
HEARD at Toronto: December 1, 2017
KITELEY J. (Orally)
[1] On October 2, 2017, Myers J. made an order that consists of nine paragraphs. Eight are procedural and the ninth orders Richard Thomas Roe and Randall Scott Roe to pay costs of $50,000.00 within 30 days namely, on or about November 2, 2017.
[2] Those respondents delivered a notice of motion for leave to appeal and brought this motion to stay paragraph 9 pending the outcome of the motion for leave and a decision on the appeal if leave is granted.
[3] The respondents on this motion filed no evidence in response because counsel takes the position that the moving party had not met any of the tests in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 (S.C.C.).
[4] I start first with the notice of motion for leave to appeal. That notice of motion does not specify which of Rule 62.02(4)(a) or Rule 62.02(4)(b) are relied upon. However, I infer that it must be Rule 62.02(4)(b) and therefore, the thrust of the motion for leave to appeal will be that there is good reason to doubt the correctness of the orders and that it involves matters of such importance that leave to appeal should be granted.
[5] The first criterion in RJR-MacDonald Inc., which is the test for stay, is whether there is a serious issue to be tried. That question must be considered in the context of the motion for leave to appeal (Barker Estate v. Walsh, 2012 ONSC 5578, 2012 CarswellOnt 13251at para.13).
[6] Costs orders attract considerable deference even where, as here, the amount is a lump sum (Global Royalties Ltd. v. Brook, 2016 ONSC 4218, 2016 CarswellOnt 10365).
[7] The moving party has not satisfied the Court that there is a serious issue to be tried that there is good reason to doubt the correctness of paragraph 9 of the order with respect to costs.
[8] If the moving party had been able to achieve that hurdle and had succeeded, there is nothing in this record to suggest that the issues for which leave is sought are of such importance that they transcend the interests of the parties. This is a case of internecine warfare of no interest beyond those engaged in the war.
[9] The moving party has failed to satisfy the Court that there is a serious issue to be tried.
[10] On that basis, I need not consider the other criteria for granting a stay because the three are conjunctive. However, there is no evidence before me that the moving party stands to suffer irreparable harm or that the balance of convenience favours the moving party.
[11] This motion for stay of paragraph 9 of the order of Meyers J. pending appeal has no merit and is dismissed. Counsel for the respondents to the motion appropriately assessed that a responding affidavit was not required.
[12] This motion for stay was only on the issue of costs. The motion for leave to appeal relates to the other parts of the order.
[13] While not necessary for purposes of dealing with the stay motion, I observe that a motion for leave to appeal a procedural order is unlikely to be successful (McCain v. Melanson, 2017 ONSC 2266). I encourage the moving parties to rethink the wisdom of pursuing the motion for leave to appeal.
[14] I have endorsed the Motion Record of the Respondents/Appellants (Moving Parties) – Vol. I as follows: “Motion to stay paragraph 9 of the order of Myers J. dated October 2, 2017 is dismissed for oral reasons given. The temporary stay made by Thorburn J. pending this hearing
expires today at 1:00 p.m. The moving parties shall pay the costs ordered by Myers J. by December 11, 2017 at 4:30 p.m. The moving parties shall pay costs of this motion for stay in the amount agreed by counsel of $7,500.00 to be paid by Wednesday January 3, 2018 at 4:30 pm.”
___________________________ KITELEY J.
Date of Reasons for Judgment: December 1, 2017
Date of Release: December 5, 2017
CITATION: Roe v. Roe, 2017 ONSC 7249
DIVISIONAL COURT FILE NO.: 608/17 DATE: 2017/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ROBERT MARK ROE
Applicant (Respondent on Appeal)
– and –
RICHARD THOMAS ROE, RANDALL SCOTT ROE AND RAYMOND CHRISTOPHER ROE
Respondents (Appellants in Appeal)
ORAL REASONS FOR JUDGMENT
KITELEY J.
Date of Reasons for Judgment: December 1, 2017
Date of Release: December 5, 2017