Court File and Parties

Court File No.: C-710-10
Date: 2013-09-24
SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Tajdin Abdula, Plaintiff

and

Canadian Solar Inc., Shawn Xiaohua Qu and Arthur Chien, Defendants

BEFORE: The Honourable Mr. Justice P.J. Flynn

COUNSEL: A. Dimitri Lascaris and D. Worndl, Counsel for the Plaintiff (Moving Party)

B. Finlay and M. Statham, Counsel for the Defendants (Respondents)

HEARD: September 12, 2013

Endorsement

[1] On July 29, 2013, Taylor J. released his Reasons for dismissing the Plaintiff’s motion for an order requiring the Defendants to answer questions and produce documents refused during the cross-examination of Michael G. Potter on his Affidavit of March 25, 2013. The Plaintiff then moved before me for leave to appeal that order to the Divisional Court.

[2] It is obvious from the very words of his endorsement that the motion’s judge was conflicted and might have ruled differently on the question of whether a Defendant is required to deliver an Affidavit pursuant to s.138.8(2) of the Ontario Securities Act in every circumstance, had not the weight of cases in the Superior Court apparently been against him.

[3] Because he found that the Affidavit of Michael Potter was filed only in response to the Plaintiff’s Certification Motion under the Class Proceedings Act, and not in response to the motion for leave under Part XXIII.I of the Ontario Securities Act, he ruled that the Defendants could not be compelled to answer questions relating to any putative cause of action under Part XXIII.I of the latter Statute.

[4] I suspect that the real reason that the Plaintiff has moved for leave to appeal is because of what I called the motion judge’s plaintive cry, demonstrating his own conflict, found in paragraph [10] of his Endorsement:

For these reasons, the motion is dismissed. As I indicated to counsel during the course of oral argument, it is my hope that leave to appeal this ruling is sought and obtained in order that the Divisional Court can provide appropriate guidance with respect to the interpretation of s.138.8(2) of the Ontario Securities Act.

[5] The grounds in which leave may be granted to appeal from the interlocutory order of a judge are set out in Rule 62.02(4):

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. (emphasis mine)

[6] Both parts of the rule are conjunctive:

(a) before a judge hearing a leave to appeal motion may consider whether it is desirable that leave to appeal be granted, she(s) must find conflicting decisions on the matters involved in the proposed appeal;

(b) and before the judge can consider whether the proposed appeal involves matters of such importance that ... leave to appeal should be granted, she(s) must conclude that there appears to be good reason to doubt the correctness of the order in question.

[7] Under both branches of the Rule, the Plaintiff must fail.

[8] Despite the time and effort spent by counsel in instructing me on a slew of cases from Ainslie v. CV Technologies Inc. (2008), 2008 63217 (ON SC), 93 O.R. (3d) 200 (S.C.J.) down through Dugal v. Manulife Financial Corp., 2013 ONSC 4083, [2013] O.J. No. 3455 (S.C.J.), I cannot say that there is any conflicting decision on the matters involved in the proposed appeal.

[9] Nor do I have any reason to doubt the correctness of the motion judge’s order.

[10] The answers sought by the Plaintiff are not relevant to the distinct certification motion.

[11] While the two motions may be dealt with together, no Affidavit has been filed in respect of the Ontario Securities Act leave motion.

[12] I disagree with the Plaintiff’s assertion that this is really a case involving one motion with two claims.

[13] A rose is a rose is a rose. And the questions refused are not relevant to the certification motion. The two motions are governed by distinct statutory regimes with distinct evidentiary burdens. Joining them in one omnibus motion does not mystically fog that reality. The motions judge did not accept the Plaintiff’s proposition in that regard and neither do I.

[14] In summary, there is neither any conflicting decision or any reason to doubt the correctness of the motion’s judge’s order.

[15] Accordingly, this motion for leave to appeal is dismissed.

Costs

[16] The Defendants have been completely successful on this motion and, unless I am persuaded otherwise by the parties’ submissions, must be presumed to be entitled to their costs.

[17] I will determine those costs after receiving the parties’ written submissions in accordance with the following directions:

(a) on or before October 18, 2013, the Defendants shall serve and file with me at my Kitchener chambers their Form 57-B Costs Outline, augmented by submissions not exceeding three double-spaced pages, together with their Bill of Costs and any relevant Offer(s); and

(b) on or before October 31, 2013, the Plaintiff shall serve and file with me at my Kitchener chambers his Form 57-B Costs Outline, augmented by submissions not exceeding three double-spaced pages, his Bill of Costs and any relevant Offer(s).

P.J. Flynn J.

Released: September 24, 2013