COURT FILE NO.: ES-756-11
DATE: 2014-03-07
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Roslynn Valera Eve, Plaintiff
and
Lillian Wilhelm as Estate Trustee of the Estate of the Late Russell Bernard Phillips and in her Personal Capacity, Arthur Earl Phillips, Earl Phillips
in Trust, 345023 Ontario Inc. also known as Phillips Bros. Radiator Service Limited, Gregory Earl Phillips, Phillips Bros. Radiator Service Ltd. Miller Thomson LLP, Clark, Pollard & Gagliardi, Defendants,
BEFORE: The Honourable Mr. Justice P.J. Flynn
COUNSEL:
Jarvis K. Postnikoff, Counsel for the Plaintiff
Randell K. Thomson, Counsel for the Defendants
HEARD: January 23, 2014
RULING
[1] One of the Defendants, 354023 Ontario Inc., seeks leave to appeal to the Divisional Court from the interlocutory order of Sloan J., made August 8, 2013, and relies upon both grounds of Rule 62.02(4) to obtain such leave.
[2] For reasons not disclosed to me, while Mr. Thomson acts for all of the Defendants named in the title of the proceeding and responded to the original motion on behalf of all of those Defendants, he now seeks leave only on behalf of 345023 Ontario Inc.
[3] For the brief reasons that follow, I would dismiss the motion for leave.
THE RULE
Grounds on Which Leave May Be Granted
62.02(4)
Leave 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.
[4] The Rule sets a high bar to grant leave to appeal on interlocutory orders by being framed as a mandatory negative (“shall not be granted unless …”).
[5] It then creates two distinct routes to leave, both having two conjunctive lanes:
Route a: Leave may be granted if there is a conflicting decision on the matter involved in the proposed appeal (Lane 1) and it is in the hearing judge’s opinion desirable that leave be granted (Lane 2); or
Route b: The hearing judge sees good reason to doubt the correctness of the order in question (Lane 1) and the proposed appeal involves matters of such importance that, in the opinion of the hearing judge, leave should be granted (Lane 2).
[6] It is important to bear in mind that leave is being sought only in respect of the Order on the second request in the motion which granted an interlocutory injunction prohibiting four of the Defendants from disbursing, distributing or paying out proceeds from the sale of three properties which had been owned by the Defendant 345023 Ontario Inc., subject to conditions as to the payment of some fees and expenses.
[7] In September 2012, Hambly J. had signed a consent order dismissing the Plaintiff’s motion for the same injunctive relief which was granted by Sloan J. in the August 2013 order on which leave is now being sought.
[8] The Plaintiff had argued that because of the earlier consent dismissal, this matter is res judicata. But Sloan J. dismissed that concern by writing:
“… I do not see how a matter can be res judicata if it has not been determined on the merits.”
[9] That is a ruling with which the Defendant takes issue.
Route a Lane 1
Conflicting Decision
[10] In support of the proposition that there is a conflicting decision on the matter, the Defendant raises Drummond Estate v. Hawthorne 1931 14 (SCC), 1931 CarswellOnt. 64, [1932] S.C.R. 73; and Lee v. Lee 2010 Carswell 6080, 2010 ONSC 4524.
[11] But the problem with that argument is that the cases upon which the Defendant relies deal with final consent orders, not interlocutory consent orders.
[12] I would determine that neither of those cases cited constitute “a conflicting decision … on the matter involved in the proposed appeal”. Moreover, as I alluded to earlier, the same parties were not before the court in the matter before Hambly J. and this motion before Sloan J.
[13] So Lane 1 of Route a would be closed to the Defendant.
Route a Lane 2
Desirable to Grant Leave
[14] In any event, I would close Lane 2 Route a by opining that no cogent reason has been shown to make it desirable, in my opinion, that leave to appeal be granted.
Route b Lane 1
Good Reason to Doubt the Correctness of the Order of Sloan J.
[15] Besides urging me to doubt the correctness of the motion judge’s ruling on res judicata, the Defendant seeks to cast doubt on the correctness of the motion judge’s conclusion that there was a “serious question to be tried”, without conducting any analysis of the merits of the Plaintiff’s numerous claims and without dealing with the Full and Final Release that on its face seems to be a complete bar to the Plaintiff’s action.
[16] As well, the Defendant raises questions about the correctness of the motion judge’s freezing of the proceeds of the sale of the three properties without making any finding whatsoever whether or not the Plaintiff had a proprietary interest in those proceeds, as the test for a Rule 45.2 order has been set out in Sadie Moranis Realty Corp. v. 1667038 Ontario Inc. 2011 CarswellOnt. 591 (Ont. Div. Ct.).
[17] The order sought to be appealed is part of an interlocutory order and there is a significant amount of money at stake.
[18] It seems to me that in that context, knowing that the issues and the money would have to be finally dealt with, probably at a trial, the motion’s judge took a practical approach.
[19] The test here is not whether the motion judge’s order is wrong or even probably wrong – or that I would have decided it differently – rather, the test is whether the decision is open to serious debate.
[20] I have no good reason to doubt the correctness of the motion judge’s order. That would block Route b Lane 1.
[21] But even if I did have a good reason to doubt the correctness of the motion judge’s order, the Defendant had to demonstrate that Lane 2 remains open as involving a matter of such importance that leave should be granted.
Route b Lane 2
Matters of Such Importance That Leave Should be Granted
[22] For the purpose of this Rule, matters of sufficient importance are those which extend beyond the interests of the litigants and relate to matters of public importance including matters relevant to the development of the law and the administration of justice.
[23] Where the issues are fact-driven, as they are here, they do not raise issues of general public interest.
[24] No doubt the issues between the litigants here are very important to them, but issues of general public importance or interest must be distinguished from matters of particular importance relevant only to the litigants.
[25] That is a real roadblock on Lane 2 – and it is conjunctive.
[26] Here the Defendant says that the Order in question changes the Last Will and Testament of Russell Bernard Phillips and thus is raised to the level of public importance.
[27] I disagree.
[28] But the main thrust of the Defendant’s complaint seems to be that which is set out in paragraph 21 of its Factum:
- If Justice Sloan’s Order is upheld, it would seem to be up to the Plaintiff to decide whether or not to consent to the payment of any bill by 345023 Ontario Inc. (including its lawyer’s account in this lawsuit which raises further issues of solicitor and client privilege) and that effectively runs up the costs of 345023 Ontario Inc. continuing on its business affairs …
[29] As Mr. Thomson forcefully argued, “I shudder to think that an opposite party has absolute control of its litigation adversary”. By that, he expresses his real concern that he might not get paid the accounts he renders.
[30] I agree with Mr. Postnikoff that nothing takes this matter beyond the concerns of the litigants themselves.
[31] So, even if the motion’s judge applied the wrong test or the correct test incorrectly, there is nothing in my opinion that elevates this dispute into a matter of such importance that, in my opinion, leave to appeal should be granted.
[32] So Lane 2 of Route b is not available to the Defendant either.
[33] The motion is dismissed.
Costs
[34] The Plaintiff has been completely successful on this motion and unless there is something unique in the parties’ submissions, she should be entitled to costs.
[35] I will fix those costs after reviewing the parties’ submissions about which I make the following directions:
(a) on or before April 4, 2014, the Plaintiff shall serve and deliver to me at my Kitchener chambers her Form 57-B Costs Outline, not augmented by more than two pages, together with her Bill of Costs and relevant Offer(s) to Settle; and
(b) on or before April 29, 2014, the Defendants shall serve and deliver to me at my Kitchener chambers their Form 57-B Costs Outline and any relevant Offer(s) to Settle.
P.J. Flynn J.
Released: March 7, 2014