ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-0438
DATE: 2013-07-15
B E T W E E N:
Allan Curle, Bruce Johnson, Jeanette Johnson, Norall Group Inc. and Norall Group Contracting Inc.,
Christopher D.J. Hacio, for the Plaintiffs
Plaintiffs
- and -
Gina Gustafson, Juanita Curle, Holly LeBrun, Carl Gustafson, and D.J. Gustafson Engineering Ltd. c.o.b. as Aegus Contracting,
Morris J. Holervich, for the Defendants Gina Gustafson and Juanita Curle
Christopher D.J. Hacio, for the Defendants Carl Gustafson and Holly LeBrun, not appearing on this motion
Defendants
HEARD: June 19, 2013,
at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Decision On Motion For Leave
[1] This is a motion by the defendants, Gina Gustafson and Juanita Curle, for leave to appeal to the Divisional Court from the interlocutory order of McCartney J., dated April 26, 2013. The other defendants, who are separately represented, did not participate in this motion.
[2] The defendants, Gina Gustafson and Juanita Curle, brought a motion before McCartney J. for an order striking out the statement of claim on the ground that it disclosed no reasonable cause of action, pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure or striking out those portions of the statement of claim alleged by the defendants to be scandalous, frivolous or vexatious, pursuant to rule 25.11.
Discussion
[3] Section 19(1)(b) of the Courts of Justice Act provides that an appeal lies to the Divisional Court from an interlocutory order of a judge of the Superior Court of Justice with leave.
[4] Rule 62.02(4) provides that 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.”
[5] As noted by Quinn J. in Jessome v. Jessome (1998), 43 R.F.L. (4th) 196 (Ont. Gen. Div.), at p. 198, rule 62.04 consists of two disjunctive branches and, in turn, each branch has two conjunctive requirements.
[6] On this motion for leave to appeal, the moving parties rely on the second branch, rule 62.04(b).
[7] To succeed on rule 62.04(b), the moving parties must establish that there is good reason to doubt the correctness of the order of McCartney J. and that the proposed appeal involves matters of such importance that leave to appeal should be granted.
[8] In determining if there is “good reason to doubt the correctness” of the decision, the question for the judge hearing the motion for leave is not whether the decision is wrong or probably wrong, but whether the correctness of the decision is open to very serious debate. See Ash v. Corp. of Lloyd’s (1992) 1992 7652 (ON SC), 8 O.R. (3d) 282 (Ont. Gen. Div.) at p. 284.
[9] With respect to the second requirement of rule 62.04(b), it is important to keep in mind that an application for leave to appeal is not an appeal. The test of general public importance is an essential requirement before leave to appeal may be granted.
[10] I have determined that the motion must be dismissed because, whether or not there is good reason to doubt the correctness of the order in question (and I am not satisfied that there is), the moving parties have not satisfied the second requirement that it involves “matters of such importance … that leave to appeal should be granted.”
[11] The defendants bringing this motion submit that this condition was met because the decision is inconsistent with the rules regarding pleadings and the jurisprudence. They submit that the principles of pleading are well established and that the motions judge failed to determine whether these defendants were sufficiently informed as to what they were alleged to have done. They submit that consistency in the application of the rules and jurisprudence is a matter of such importance that leave should be granted.
[12] The defendants refer to Ansah v. H & R Property Management 2007 CarswellOnt. 6103, where Kiteley J. granted leave to appeal a decision of the motions judge who dismissed a motion for summary judgment. Kiteley J. found that the moving party in that case had satisfied both requirements of both rule 62.04(a) and 62.04(b). She found that there were conflicting decisions and that it was desirable that leave be granted under rule 62.04(a). She also found that there was good reason to doubt the correctness of the order. With respect to the second requirement of rule 62.04(b) she stated, at para. 5:
“While the factual question is unique to these parties, I agree with Mr. Lafave that motions under R. 20 are of considerable importance and consistency in the application of the Rules and the jurisprudence is important.”
[13] In my view, Ansah is distinguishable from the instant case. In Ansah, the motions judge dismissed a defendant’s summary judgment motion. Kiteley J. found that the plaintiff had not filed a responding affidavit containing specific facts to show that there was a serious issue for trial as between the plaintiffs and the defendant. She found that the decision of the motions judge might be in conflict with the seminal case of Dawson v. Rexcraft Storage & Warehouse Inc., 1998 4831 (ON CA), [1998] O.J. No. 3240 (C.A.), and others cases, that require a party responding to a summary judgment motion to file affidavit evidence that raises a genuine issue for trial. She found that if the motions judge in effect applied a Rule 21 standard to a Rule 20, it was desirable to grant leave. (I note in passing that the Divisional Court dismissed the appeal on the basis that the defendants had not filed evidence in reference to some key allegations of fact made against them and it therefore was not incumbent on the responding party to put forward evidence concerning those issues.)
[14] The matter before McCartney J. was a pleadings motion. McCartney J. referred to well established principles governing pleadings:
• a pleading will only be struck if it is plain and obvious, assuming the facts to be pleaded to be true, that the pleading discloses no reasonable cause of action;
• parts of a pleading may be struck if they are scandalous, frivolous or vexatious – meaning that the offending parts are irrelevant, argumentative or inserted for colour – or that they constitute bare allegations;
• every pleading is to contain a concise statement of material facts on which the party relies, but not the evidence by which the facts are to be proved.
[15] Justice McCartney then referred to each of the various causes of action and related each of them to the relevant paragraphs in the statement of claim.
[16] He concluded that taking into account the fact that the basic allegation of the plaintiffs was that there was a conspiracy by the defendants to take over the plaintiffs’ business, the facts were clearly laid out in the statement of claim and the statement of claim disclosed a reasonable cause of action. Having regard to what counsel for the defendants objected to as “atmosphere”, he concluded that the parts objected to were part of the narrative and not so egregious as to be struck from the pleadings.
[17] He found that what the defendants should have properly requested were particulars set out in a demand for particulars, not an order striking out the statement of claim.
[18] This decision was not the equivalent of the decision in Ansah, with the significant consequences attendant upon granting summary judgment, where the judge hearing the motion for leave concluded that the wrong principles were applied by the motions judge and that the decision may be in conflict with the leading case on the issue.
[19] Although the matters in issue before McCartney J. may be of considerable importance to the moving parties, they are not issues of broader importance extending beyond the interest of the parties themselves.
[20] In Rankin v. McLeod, Young, Weil Ltd. et la (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H. Ct.), the plaintiff argued that it was denied adequate discovery on important amendments to the statement of claim and on particulars ordered by the court and on important documentary evidence not produced. Catzman J. dismissed the motion for leave. He stated, at para. 15:
“… in my view the ‘importance’ comprehended by the rule transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application that are felt to warrant resolution by a higher level of judicial authority… .”
[21] Catzman J. reviewed, as illustrative and instructive, examples of cases which addressed the issue from the perspective of general or public importance, extending beyond the interests of the parties, such as: the applicability and the appropriate scope of Mareva injunctions in Ontario law; the admissibility of evidence in civil proceedings of, and if admissible the effect to be given to, certificates of conviction in prior criminal proceedings; the propriety of an interlocutory injunction which effectively restrains the rights of free speech.
[22] The issue of general or public importance was addressed recently in Kassian Estate v. Canada (Attorney General) 2013 ONSC 892 (S.C.J.). The summary judgment motion in the first instance involved a series of arguments on the provision of police services, entered into by Canada, Quebec, Ontario and the Mohawk Council of Akwesasne. Beaudoin J. held, at para. 37:
“Since the motion judge’s decision on the summary judgment motion will have profound resource liability implications to Ontario, Quebec and other provinces which have entered into similar agreements with Canada and other First Nations, I agree that the issues raised by this proposed appeal warrant clarification and resolution by a higher level of judicial authority.”
[23] Beaudoin J. adopted the test set out in Rankin of when a matter will be of such importance that leave to appeal should be granted.
[24] This is not to say that a motion to strike pleadings can never involve matters of such importance that the second requirement of rule 62.04(b) cannot be satisfied.
[25] In Brownhall v. Canada (Minister of National Defence) (2006), 2006 7505 (ON SC), 80 O.R. (3d) 91 (S.C.J.), DiTomaso J. granted leave to appeal a decision dismissing a motion to strike all or part of the statement of claim. The grounds before the motions judge were: (a) that the statement of claim disclosed no reasonable cause of action, (b) that the claim was immaterial, frivolous, embarrassing or abusive and (c) that the statement of claim failed to contain a concise statement of material facts on which the plaintiff relied. DiTomaso J., at para. 80, found that the matters involved in the motion were of general importance for the following reasons:
“(a) The decision in question goes to the very heart of the issue as to whether a member of the Canadian Forces who claims damages against the military resulting from injuries or a disability can maintain a tort action in the face of a pension paid, payable or not applied for. As such, it transcends the interests of Private Brownhall alone. Further, the decision is of great concern to the defendant, the federal Crown, which is the defendant in all such claims against the Canadian Forces. Without doubt, this decision deals with a matter of "general importance" which goes well beyond the immediate interests of the parties herein;
(b) The decision in question is of importance both nationally and in Ontario. It deals with statutes such as the Pension Act, the Crown Liability and Proceedings Act and the Veterans Review and Appeal Board Act which are federal statutes and equally applicable to all Superior, Provincial and territorial courts in Canada, as well as the Federal Court of Canada, which has concurrent jurisdiction over this type of action;
(c) Given conflicting decisions, it is important to clarify whether the defendant Crown can rely upon the Rules of Civil Procedure or binding decisions to deal with these types of actions on a summary basis, in Ontario and elsewhere, without such claims simply proceeding to trial. It is important and in the public interest that the decision in question be the subject of appellate review by the Divisional Court;
(d) The decision in question goes well beyond a mere discretionary order on a procedural matter made by a motions court judge and is of general importance. The statutory framework including the statutory bar provision found in s. 9 of the CLPA together with Sarvanis and the post-Sarvanis cases require the consideration of a higher court. The decision in the case at bar is in conflict with recent decisions of [page114] higher courts. An appeal to the Divisional Court raises important issues pertaining to the administration of justice and the development of the law in this specific area; and,
(e) Section 8 of the CLPA also raises the issue of Crown immunity from lawsuits such as in this case. As with the s. 9 issue, the question of the applicability of s. 8 goes directly to the heart of the issue as to whether a lawsuit such as Private Brownhall's lawsuit, brought by members of the Canadian Forces, can and ought to be sustained in light of the immunity provision. Once more, this issue transcends the immediate interest of the parties and involves the administration of justice and the development of the law [not] only in Ontario, but throughout Canada.
[26] Brownhall is an example of where the issues involved in a review of the statement of claim went well beyond technical matters related to principles of pleadings. The motion in that case was not simply a “pleadings” motion.
[27] In the instant case, there are no factors analogous to those in Brownhall that characterize this motion to strike as a matter of general importance to the development of law and the administration of justice. As acknowledged by the moving defendants, the principles on a motion to strike are clear and well settled. Those principles were enunciated and applied by McCartney J., exercising his discretion on a procedural matter. The issues related to the pleadings on the motion before McCartney J. did not transcend the interests of the parties.
[28] The motion for leave to appeal is therefore dismissed, with costs to the plaintiffs.
[29] If the parties are unable to agree on costs, the plaintiffs shall deliver written submissions, not exceeding five pages, (exclusive of their bill of costs), within 20 days. The moving defendants shall deliver responding written submissions, not exceeding five pages, (exclusive of any bill of costs they may wish to file for comparison purposes), within 15 days of the receipt of the plaintiffs’ submissions.
The Hon. Mr. Justice D. C. Shaw
Released: July 15, 2013
COURT FILE NO.: CV-12-0438
DATE: 2013-07-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Allan Curle, Bruce Johnson, Jeanette Johnson, Norall Group Inc. and Norall Group Contracting Inc.,
Plaintiffs
- and –
Gina Gustafson, Juanita Curle, Holly LeBrun, Carl Gustafson, and D.J. Gustafson Engineering Ltd. c.o.b. as Aegus Contracting,
Defendants
DECISION ON MOTION FOR
LEAVE TO APPEAL
Shaw J.
Released: July 15, 2013
/mls