Court File and Parties

CITATION: Sirdi Sai Sweets et al. v. McCarthy Tetrault et al., 2015 ONSC 3060 DIVISIONAL COURT FILE NO.: 109/15 DATE: 2015-06-02

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Sirdi Sai Sweets and Ramesh Mehta, Applicants/Moving Party AND: McCarthy Tetrault and Sari E. Batner, Respondents/Responding Parties

BEFORE: Lederman J.

COUNSEL: Ramesh Mehta, in person, the Moving Party Katherine A. Booth, for the Responding Parties

HEARD at Toronto: In Writing

Endorsement

[1] The moving party, Ramesh Mehta (“Mehta”) is a former client of the responding parties. He seeks leave to appeal to the Divisional Court from the Order of Mr. Justice Spence (the “Motion Judge”) dated February 13, 2015.

NATURE OF THE ISSUE BEFORE THE MOTION JUDGE

[2] Mehta moved before the Motion Judge for an order requiring the respondents to refund various amounts paid to them pursuant to their solicitor’s invoices. His motion was brought in the context of a proceeding that Mehta commenced seeking an assessment of the respondents’ invoices. The assessment hearing is scheduled for August 18 – 20, 2015.

[3] Mehta asserted that the billing agreement he entered into with the respondents included a hand-written term requiring the respondents to apply a 50% discount to all of his invoices but that in fact the discount had not been applied. The respondents contended that Mehta falsified the billing agreement, adding terms after the fact and without the respondents’ knowledge or consent.

[4] After reviewing all of the parties’ materials including the documents in issue and after hearing submissions from both Mehta and the respondents, the Motion Judge concluded that the 50% discount did not form part of the true billing agreement and that the term had been fraudulently added by Mehta after the fact. He therefore dismissed Mehta’s motion with costs to the respondents on a substantial indemnity scale.

THE TEST FOR GRANTING LEAVE TO APPEAL

[5] 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 that 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.

[6] 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), 7 O.R. (3d) 542 (Div.Ct.).

[7] 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 is satisfied that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J. per Then J.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen Div., per Farley J.). In addition, the moving party must demonstrate matters of importance that go beyond the interest of the immediate parties and involve questions of general or public importance relevant to the development of the law and the administration of justice: Rankin v. McLeod Young Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J. per Catzman J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div.Ct.).

[8] Mehta has attempted to introduce fresh evidence on this motion. It would appear that there is no jurisdiction to entertain fresh evidence on a motion for leave to appeal: SMF soft.com Inc. v. Rompart Services (Trustee of), [2005] O.J. No. 4847. In any event, Mehta has not shown that the test for adducing fresh evidence has been met.

RULING

[9] On this motion for leave, Mehta has not made any submissions on how either test for leave to appeal under Rule 62.02(4) has been met. Rather, he complains that the Motion Judge should not have accepted the respondents’ affidavit evidence over the “original” copy of the billing agreement that he produced; failed to consider the significance of the signatures at the bottom of the page of the “original”; and further that, the Motion Judge required him to present his argument out of turn. Basically, Mehta seeks to re-argue the issues raised before the Motion Judge

[10] The decision of the Motion Judge was fact specific and his findings of credibility were based on the evidence before him. There is no jurisprudence or legal principle that conflicts with his decision. Moreover, in my opinion, it is not desirable that leave to appeal be granted. The test under Rule 62.02(4)(a) has not been met.

[11] Further, with respect to Rule 62.02(4)(b), I do not have good reason to doubt the correctness of the Motion Judge’s Order. There was sufficient evidence before him to permit the conclusion that he reached.

[12] The Motion Judge allowed the respondents to put their oral submissions first in order that Mehta, who was self-represented, would see clearly and specifically the case that he had to meet regarding the validity of the agreement and that Mehta could make sure that none of the respondents’ points were missed. Although the Motion Judge permitted the respondents to proceed first in this fashion, there is no basis whatsoever to suggest that Mehta was denied full opportunity to be heard.

[13] Furthermore, the proposed appeal is not of any particular importance for anyone but the parties. It does not have broad significance that warrants resolution by an appellate court. No issues are raised as to matters relevant to the development of the law and the administration of justice. Thus neither branch of the the test under Rule 62.02(4)(b) has been met.

[14] The same can be said for the Motion Judge’s order as to costs. There was a sound basis for the order as to costs and Mehta made no submissions as to why there should be an appeal from that order.

DISPOSITION

[15] Accordingly, the motion for leave to appeal is dismissed. The responding parties will have their partial indemnity costs of the motion for leave, as set out in their costs outline, in the amount of $4,621.25, all inclusive, payable by Mehta within 30 days.

Lederman J.

Date: June 2, 2015