Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20240123 DOCKET: M54774(COA-23-OM-0355)

Before: Simmons J.A. (Motion Judge)

BETWEEN

Bedros Avedian, Claudio Petti And Mario D’Orazio Plaintiffs (Moving Parties)

and

Enbridge Gas Distribution Inc. operating as Enbridge Gas Distribution, Enbridge Solutions Inc. operating as Enbridge Energy Solutions, Enbridge Inc., Lakeside Performance Gas Services Ltd. operating as Lakeside Gas Services Defendants (Respondents)

and

Alpha Delta Heating Contractor Inc. and Aubrey Leonard Dey Third Parties (Respondents)

and

TQB Heating and Air Conditioning, Brentol Bishop a.k.a. Brent Bishop, Enbridge Solutions Inc. Operating as Enbridge Energy Solutions and Enbridge Inc. Fourth Parties (Respondents)

Counsel: Christine Carter and Jean Pierre Bouchard, for the moving parties C. Kirk Boggs, for the respondents Alpha Delta Hearing Contractor Inc. and Aubrey Leonard Dey, and as agent for counsel for the respondents Enbridge Gas Distribution Inc. operating as Enbridge Gas Distribution and Lakeside Performance Gas Services Ltd. operating as Lakeside Gas Services David Reiter, for the respondent Enbridge Solutions Inc. Christopher Morrison, for the respondents Brentol Bishop and TQB Heating and Air Conditioning

Heard: January 18, 2024

Endorsement

[1] The moving parties seek an order staying orders dated October 3 and 5, 2023 (the “Orders”) pending determination of their motion for leave to appeal the Orders and, if leave is granted, pending their appeal.

[2] The Orders were made by a case management/trial judge. They set aside a pre-trial date and vacated a trial date to allow a motion for directions brought by the responding parties to proceed prior to trial.

[3] As the Orders are interlocutory, the appeal route was to the Divisional Court with leave. The moving parties’ motion for leave to appeal to the Divisional Court was denied by a panel of the Divisional Court on December 8, 2023. As is customary, no reasons were given for denying leave.

[4] On December 20, 2023, the moving parties served a motion for leave to appeal to this court from the decision of the Divisional Court dated December 8, 2023. Among other things, the moving parties contend that the responding parties’ motion for directions is actually a motion for partial summary judgment or to strike claims disguised as a motion for directions, and that the pretrial and trial dates should not have been vacated to allow it to proceed.

[5] For the reasons that follow, I deny the moving parties’ request for a stay.

Background

[6] The moving parties’ action arises out of a gas explosion that occurred in 2010. The action was set down for trial in 2017 and was originally scheduled to proceed to trial in February 2020. However, it was adjourned to permit a motion for partial summary judgment to proceed.

[7] On an appeal as of right to this court from the partial summary judgment decision, this court held that the trial should not have been adjourned in light of the “Consolidated Practice Direction for Civil Actions … in the Toronto Region” in force at the time. The Practice Direction provided that “[o]nce trial dates are set, there will be no adjournments of the trial except in extenuating and exceptional circumstances.” This court found that there were no extenuating or exceptional circumstances to justify adjourning the trial and permitting the motion for summary judgment to proceed and also found that the motion judge erred in finding there was no genuine issue requiring a trial. In its May 31, 2021 decision, this court ordered that this matter be set down for trial on an expedited basis: Avedian v. Enbridge, 2021 ONCA 361, at paras. 14, 16-23, 24.

[8] Following this court’s decision, the case management/trial judge was appointed on consent of the parties.

[9] Eventually, a pretrial conference was scheduled for October 24, 2023, and the trial was scheduled to commence on January 15, 2024 for four weeks. However, as a result of the Orders, both the pretrial date and the trial date have been vacated and the responding parties’ motion for directions has subsequently been scheduled for hearing on February 12-13, 2024.

Rule 63.02 – Motions for a Stay Pending Appeal by Order

[10] Rule 63.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides:

63.02 (1) An interlocutory or final order may be stayed on such terms as are just,

(a) by an order of the court whose decision is to be appealed;

(b) by an order of a judge of the court to which a motion for leave to appeal has been made or to which an appeal has been taken.

The Test on a Motion for a Stay

[11] The principles applicable on a motion for an order granting a stay pending appeal are well known. In RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334, the Supreme Court of Canada set out a three-part test for obtaining a stay of a judgment pending appeal:

(1) whether there is a serious question to be tried (i.e., to be determined on appeal);

(2) whether the moving party will suffer irreparable harm if the stay is not granted; and

(3) whether the balance of convenience favours granting a stay.

[12] The components of the test are not watertight compartments, but rather interrelated considerations such that the strength of one may compensate for the weakness of another: see Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), at p. 677. However, in some cases, this court has treated the absence of any one factor on its own as sufficient to dispose of the motion for stay: e.g., Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 122, at paras. 6, 16; Volk v. Volk, 2020 ONCA 297, at paras. 12-13. In other cases, the court has indicated that the factors are not “prerequisites” and that “[t]he ultimate test for granting a stay is the interests of justice”: M & M Homes Inc. v. 2088556 Ontario Inc., 2020 ONCA 134, 51 C.P.C. (8th) 253 at para 42. In the end, the overarching consideration is “whether the interest of justice call for a stay”: Longley v. Canada (Attorney General), 2007 ONCA 149, 223 O.A.C. 102, at para. 15; Circuit World, at p. 677.

The Moving Parties’ Position

[13] The moving parties submit that the interests of justice demand a stay of the Orders because the motion judge made multiple errors in making them which will cause them irreparable harm. They say such alleged errors raise a serious question to be tried and include:

• permitting what is in reality a motion for partial summary judgment/motion to strike claims, brought in the guise of a motion for directions to proceed on the eve of trial;
• vacating the pretrial date and trial dates without identifying extenuating and exceptional circumstances contrary to the Consolidated Practice Direction and in the face of the 2021 direction from this court that the trial be scheduled on an expedited basis;
• misapprehending the nature of the claims being advanced by the moving parties; and
• failing to disclose an alleged conflict of interest that arose before the Orders were made.

[14] The moving parties assert that they will suffer irreparable harm if a stay is not granted because the issue of whether the motion for directions, which they characterize as being actually a motion for partial summary judgment/motion to strike, can proceed in advance of the trial will become moot: Ducharme v. Hudson, 2021 ONCA 151, at para. 20. Moreover, if the relief requested in the motion for directions is granted, a portion of their claim will be dismissed without a trial. Such a result would inevitably lead to further delays through lengthy appeals. Such delays would jeopardize the fairness of the trial through issues that could arise as a result of loss of witnesses or witness memory issues.

[15] Finally, given the already lengthy delays in bringing this matter to trial, the direction of this court that the trial be scheduled on an expedited basis and the cancellation of their trial date in the absence of exceptional and extenuating circumstances, the moving parties submit that the balance of convenience clearly favours granting a stay.

Discussion

[16] It is not clear to me that the moving parties are entitled to a stay of the Orders based on their application for leave to appeal to this court from the denial of their motion for leave to appeal the Orders to the Divisional Court. They are not seeking leave to appeal the Orders to this court, rather they are seeking leave to appeal the order of the Divisional Court. How does a stay of that order (denial of leave to appeal) give rise to a stay of the underlying orders?

[17] Nonetheless, assuming, without deciding, that the moving parties can seek a stay of the Orders which underly the Divisional Court decision, I am not satisfied that the moving parties meet any of the prongs of the RJR-MacDonald test.

[18] Concerning the first prong of the test, I agree with the moving parties that, under s. 6(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43 [1], this court has jurisdiction to entertain a motion for leave to appeal an order of the Divisional Court denying leave to appeal from an interlocutory order. Nonetheless, I accept the responding parties’ position that in determining such leave motions this court applies a general rule that, absent the Divisional Court “mistakenly declining jurisdiction”, this court will not grant leave to appeal from an order of the Divisional Court refusing leave to appeal: Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 446. See also Haudenosaunee Development Institute, at para. 8.

[19] In Greco, at paras. 3-5, a panel of this court stated:

We have considered the applicant’s fresh evidence, which includes a sentencing decision of Justice Chozik, dated January 12, 2021. That fresh evidence changes nothing in terms of the merits of the leave to appeal application.

There is no merit in [the applicant’s] motion for leave to appeal from the Divisional Court’s order refusing leave to appeal and it is therefore frivolous. As a general rule, there is no ability to appeal from an order of an intermediate court refusing leave to appeal, unless the judge of that court “mistakenly declined jurisdiction”: Hillmond Investments Limited v. Canadian Imperial Bank of Commerce (1996), 135 D.L.R. (4th) 471 (Ont. C.A.), at pp. 483-84; Denison Mines Limited v. Ontario Hydro (2001), 56 O.R. (3d) 181 (C.A.), at para 4-5, 8. The Divisional Court did not “mistakenly declin[e] jurisdiction” when it determined the leave motion. The Divisional Court was under no obligation to provide reasons for refusing leave to appeal: 2265535 Ontario Inc. v. Vijayant Sood, 2017 ONSC 4738 (Div. Ct.), at para. 1.

Accordingly, the Regional Municipality of Halton’s motion to strike [the applicant’s] Notice of Motion for leave to appeal is granted. The motion to admit fresh evidence is denied. [Emphasis added.]

[20] The moving parties argue that Greco does not support the responding parties’ position because they say it is apparent from the fact that this court considered the applicant’s fresh evidence that this court decided the applicant’s motion for leave to appeal on the merits. I disagree.

[21] On my reading of Greco, this court found there was no merit in the applicant’s leave motion, and that it was therefore frivolous, because of the general rule that a party may not appeal, or seek leave to appeal, a Divisional Court decision denying leave to appeal unless a judge of that court “mistakenly declined jurisdiction”. Concerning the applicant’s fresh evidence, this court found simply that it changed nothing in terms of the merits of the leave motion, which was frivolous because of the general rule.

[22] As in Greco, I see no basis for concluding that the Divisional Court mistakenly declined jurisdiction when it denied leave to appeal. As noted in Greco, the Divisional Court was under no obligation to give reasons for denying leave in this matter. Further, I am not persuaded that McEwen (Re), 2020 ONCA 511 assists the moving parties in relation to this issue.

[23] McEwen involved a review by a panel of this court of the decision of a single judge of this court under s. 7(5) of the Courts of Justice Act. The single judge had denied the moving party leave to appeal a decision of a Superior Court judge under s. 193(e) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3. Based on a review of the reasons given by the single judge of this court, a panel of this court determined that the single judge’s reasons were insufficient to explain why he had denied leave to appeal, leading the panel of this court to conclude that the single judge declined jurisdiction by not making a decision on the merits.

[24] In this case, however, as I have said, the Divisional Court was under no obligation to give reasons for denying leave to appeal and I have no basis for concluding the Divisional Court mistakenly declined jurisdiction.

[25] As a single judge of this court, I cannot rule conclusively on the merits of the moving parties’ leave motion. However, in assessing whether the moving parties have met the first prong of the RJR-MacDonald test, I am required to consider their prospects of success on the leave motion. For the reasons set out above, I conclude that their leave motion is bound to fail and that they have not raised a serious question to be tried on their leave motion.

[26] Given that finding, it may not be strictly necessary that I consider the remaining prongs of the RJR-MacDonald test. It is not in the interests of justice that a stay be granted pending determination of a motion that I conclude is bound to fail.

[27] Nonetheless, I will add that I am not satisfied that the moving parties have demonstrated that they will suffer irreparable harm if a stay is not granted. The trial date that was vacated has, for all practical purposes, come and gone. As for the responding parties’ motion for directions, the moving parties will only suffer harm if the judge who hears the motion makes a reviewable error. If that occurs, the error can be corrected on appeal. In the circumstances of this case, I would expect any such appeal would be expedited.

[28] Finally, I am not satisfied that the moving parties have demonstrated that the balance of convenience favours granting a stay. If a stay is granted, the action will be delayed by at least the amount of time involved in hearing the leave motion. If no stay is granted, the motion for directions will go forward and the moving parties will suffer harm through further delay only if the judge who hears it makes some reviewable error. I am not persuaded that that contingency tips the balance of convenience in favour of a stay.

Disposition

[29] Based on the foregoing reasons, the stay motion is dismissed. The responding parties may deliver written submissions on costs not to exceed five pages within 10 days of the release of these reasons. The moving parties may respond in written submissions not to exceed five pages within 10 days thereafter.

“Janet Simmons J.A.”

[1] This court acquired that jurisdiction as a result of a 2017 amendment to the Rules of Civil Procedure providing that leave to appeal to the Divisional Court from an interlocutory order of a judge of the Superior Court of Justice shall be obtained from a panel of the Divisional Court: rule 62.02.