PETERBOROUGH

COURT FILE NO.: 291/10

DATE: 20130729

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Levi Strauss & Co., Plaintiff

AND:

G4S Solutions (Canada) Ltd./G4S Solutions de Securite (Canada) Ltee., Defendant

BEFORE: Mr. Justice D.S. Gunsolus

COUNSEL: Carolyn Lutes, for the Plaintiff

Todd Robinson, for the Defendant

HEARD: July 26, 2013

ENDORSEMENT

[1] This is a motion by the Defendant, G4S Solutions (Canada) Ltd., for an order granting Leave to Appeal to the Divisional Court from the endorsement of the Honourable Justice M.E. Vallee, made at a Status Hearing on May 10, 2013. By that endorsement, Justice Vallee, exercised her discretion, and permitted this action to proceed based upon a timetable.

[2] The moving party’s position is that Justice Vallee should not have exercised her discretion in this matter, due to a lack of any sworn evidence being presented by either the plaintiff or the defendant and in the face of case law which the defendant believes Justice Vallee did not follow when she exercised her discretion in determining a delay of 1.5 years had been adequately explained by plaintiff’s counsel, such that she determined that this action should proceed.

[3] The statement of claim in this matter was filed on December 31, 2010 and a defence was filed on April 13, 2011. Subsequent to those steps, prior counsel for the plaintiff entered into negotiations with the insurer for the defendant and maintained intermittent communication with counsel for the defendant. It would appear that the process was one of attempting to negotiate a settlement, rather than pursue the litigation per se.

[4] On October 12, 2012, the plaintiff retained current counsel, who delivered an affidavit of documents, made an offer to settle the action and requested dates for examinations for discovery.

[5] On the 14th of April, 2013, the court issued a status notice, and the plaintiff Levi immediately requested that the court schedule a status hearing, and on March 15th, 2013 a Notice of Status Hearing was indeed issued by this court. The status hearing was heard on May 11th, 2013 on the basis of the court file and oral submissions made by counsel for both the plaintiff and the defendant.

[6] Justice Vallee, in exercising her discretion, determined that the matter should proceed based upon a timetable. In doing so, she made certain findings of law and fact which can be summarized as follows:

(a) It is appropriate for a status hearing in these circumstances to proceed, “by way of oral evidence” and that these do “generally proceed on oral evidence”. (I note that this was the first status hearing held in this matter.)

(b) That the plaintiff provided some details to explain the steps taken by previous counsel to move the matter forward and that previous counsel had retired from the practice of law.

(c) That Levi’s previous counsel had “not proceeded as expeditiously as he should have” but that “this is not a reason to dismiss the plaintiff’s claim” as it “appears that the plaintiff did intend to prosecute this action”.

(d) That the presence of videotape evidence counsel obviate the potential prejudice that develops over the passage of time and furthermore, that no efforts had been made by the defendant to preserve witness evidence.

[7] The sole issue to be determined is whether the defendant properly meets the test for leave to appeal an interlocutory order, pursuant to Rule 62.02(4) and whether they should be granted to leave to appeal.

[8] Rule 62.02(4) of the Rules of Civil Procedure provides that leave to appeal from an interlocutory order of a judge 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 a proposed appeal involves matter of such importance that, in his or her opinion, leave to appeal should be granted.[^1]

[9] In order to satisfy the test for leave to appeal under Rule 62.02(4)(a) the moving party must demonstrate a difference in the principles chosen as a guide to the exercise of judicial discretion. An exercise of discretion which has led to a different result because of differing circumstances does not meet the requirement of a conflicting decision.[^2]

[10] In order to satisfy the “good reason to doubt the correctness” requirement of Rule 62.02(4)(b), the court must doubt the correctness of the decision, such that it is open to very serious debate or involves issues that are novel and/or not in accordance with established case law.[^3]

[11] Further, under Rule 62.04(4)(b) the moving party must also satisfy the court that the matter is of significant importance. In other words, the moving party must demonstrate that the proposed appeal raises matters of importance that go beyond the interests of the immediate parties to this litigation. The proposed appeal must involve matters of general or public importance relevant to the development of the law and the administration of justice, such as the interpretation or clarification of a general rule or principle of law or the types of evidentiary requirements necessary for a judge to make findings of fact at a particular hearing.[^4]

[12] Finally, a decision at a status hearing is discretionary and entitled to deference on appeal. The decision may only be set aside where it was made on the basis of an erroneous legal principle or a palpable and overriding error in any finding of fact or facts.[^5]

[13] It is acceptable for a status hearing to proceed on the basis of oral submissions by counsel. There is no principle of case law which states that a status hearing may proceed only on the basis of sworn affidavit evidence.[^6] Further, it is accepted practice for lawyers to outline the facts by way of their own oral submissions in order for the presiding judge to determine whether or not the plaintiff has met the onus on a status hearing.[^7] In fact, numerous cases have confirmed that affidavit evidence is not required at a status hearing.[^8]

[14] The usual practice is for an initial status hearing to proceed on a basis of oral submissions. It is in the discretion of the presiding justice to determine whether or not an action is vulnerable to dismissal for delay such that they might require a full hearing based upon affidavit evidence.[^9]

Decision

[15] As just stated, the usual practice in relation to an initial status hearing is that it proceed on the basis of oral submissions. If, on the other hand, the judge hearing the status hearing forms a view, on the basis of those oral submissions, that the matter is vulnerable to dismissal for delay, it is open to the judge to require a full hearing based upon affidavit evidence.[^10]

[16] In this case, it is clear that the presiding justice felt that the matter could proceed, as it was an initial status hearing, based upon oral submissions. The matter was not found to be vulnerable to dismissal. It is to be noted that this matter was delayed, according to both counsel for the plaintiff and the defendant, approximately 1.5 years. Justice Vallee clearly stated that she did not feel that a full-blown “show cause hearing” was required in the circumstances of the matter, as it was put before her.

[17] I have reviewed the cases referred to me by both counsel for the plaintiff and defendant, and I have determined that there is no conflicting decision on point by another judge or court in Ontario or another jurisdiction on the issues in the proposed appeal.

[18] It is not the law that affidavits shall be required on all status hearings. Sworn evidence is not always a requirement. A review of Justice Vallee’s decision discloses that she considered all of the relevant factors and came to the conclusion that this is a case that should move forward based upon a time table. She made a discretionary decision based upon a full review of the file, the law and the submissions made by counsel.

[19] This would appear to be a case, as counsel for the plaintiff suggests, wherein there is no evidence that the presiding justice misapplied or applied incorrect principles of law. Rather, it was a proper exercise of her discretion, the results of which the defendant is simply not happy with.

[20] Indeed, conflicting decisions must refer to the principles and not the result, and I am satisfied in this matter that Vallee J. exercised her discretion, based upon the facts as presented to her. As such, I cannot find that there are conflicting decisions which would affect the discretion which she exercised.

[21] As to whether or not I should grant leave to appeal in this matter because the issues are of wide-public importance, I do not believe that this principle applies to the matter before me.

[22] This request for leave to appeal relates to a standard initial status hearing. The law is clear as outlined in the cases applicable to granting leave to appeal in matters of this nature. The proposed appeal will not raise matters of greater public importance as it in fact, relates to facts that are very specific to this case and upon which the presiding justice appropriately exercised her discretion.

[23] Finally, I must consider the correctness of the order of Vallee J. I do not need to determine whether or not the order was wrong or probably wrong, only that there is good reason to doubt the correctness of the decision. I must determine whether or not the decision is open to serious debate, and if I do, I must be satisfied that the decision warrants resolution by a higher level of judicial authority. Leave would be granted in those circumstances if I believed the issues involved are of general importance that relate to matters of public importance and matters relevant to the development of the law and the administration of justice.

[24] In relation to a matter that has been delayed 1.5 years, and in relation to which the plaintiff has retained new counsel who are moving the matter forward, I cannot find that there is good reason to doubt the correctness of Justice Vallee’s order.

[25] In the circumstances of this case, the delay has been short-lived. This is not a case that languished for a number of years, without explanation, as in the majority of the cases to which I was referred. There was no evidence presented to suggest that the matter will not proceed in accordance with the timetable that has been imposed upon the parties in this matter.

[26] Justice Vallee determined that there would be no prejudice to the defendant in allowing this matter to proceed. I am satisfied from the transcript and from her endorsement dated May 10, 2013 that there is no good reason to doubt the correctness of Justice Vallee’s order. Her decision was a discretionary one, to which I must apply deference. I cannot put my finger on an erroneous legal principle or a palpable or overriding error of fact.

[27] The decision does not stray from the established principles applicable to such matters. I could find nothing in her decision that alters or misapplies the law. Again, her decision is based on specific facts and she appropriately exercised her discretion on those facts. I could find no overarching legal principles requiring appellant clarification, nor could I find any interest beyond the interest of the parties directly involved in this case.

[28] To that end, leave to appeal is denied and the motion is dismissed.

[29] Counsel may make submissions regarding costs. They may do so, in writing, limited to three (3) pages plus dockets, same to be submitted no later than September 1st, 2013, to the attention of my judicial assistant, Ms. Toni McKenney, via email: Toni.McKenney@ontario.ca or via fax: (705) 745-3526.

“Mr. Justice D.S. Gunsolus”

Date: July 29, 2013

[^1]: See: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 62.02(4)

[^2]: Penney (Estate of) v. Resetar, 2010 ONSC 4678; Comtrade Petroleum Inc. v. 490300 Ontario Ltd.(1992), C.P.C. (3d) 27; Farmer’s Oil and Gas Inc. v. Ontario (Ministry of Natural Resources) [2013] O.J. No. 1373 (Div. Ct.)

[^3]: Farmers Oil and Gas Inc. v. Ontario, supra; Amato v. Welsh [2011] O.J. No. 2505 (Div. Ct.)

[^4]: Farmers Oil and Gas Inc. v. Ontario, supra; also see: 2156384 Ontario Inc. v. C&K Property Management Inc. [2012] O.J. No. 6133 (Div. Ct.)

[^5]: 1196158 Ontario Inc. v. 6274013 Canada Ltd. 2012 ONSC 4042, [2012] O.J. No. 3387 (C.A.)

[^6]: Clements v. Greenlaw, 2009 33028 (ON SCDC), 2009 CarswellOnt 3704 (Div. Ct.)

[^7]: Kular v. Ecosol Solar Technologies Inc., 2012 ONSC 6410

[^8]: Khan v. Sun Life Assurance Co. of Canada 2011 ONSC 455, [2011] O.J. No. 510 (S.C.J.), aff’d 2011 ONCA 650, [2011] O.J. No. 4590 (C.A.); Horn v. Stefauis, 2012 ONSC 6141

[^9]: Bolohan v. Hull 2012 ONCA 121, [2012] O.J. No. 749 (C.A.); Clements, supra; Kular, supra; and Koepcke v. Webster 2012 ONSC 357, [2012] O.J. No. 230 (S.C.J., Master)

[^10]: See Bolohan v. Hull, supra