CITATION: Obiorah v. The Ottawa Police Services Board, 2015 ONSC 4643
COURT FILE NO.: 07-CV-39240
DATE: 2015-07-20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NNANYERE OBIORAH
Plaintiff/Responding Party
– and –
THE OTTAWA POLICE SERVICES BOARD
Defendant/Moving Party
Susanne Sviergula, for the Plaintiff/Responding Party
Jeremy Wright, for the Defendant/Moving Party
HEARD: In writing
Ray, J.
[1] This is a Leave Application to be considered in writing by a single Judge pursuant to Rule 62.02 (2) of the Rules of Civil Procedure. Following are the relevant provisions: If it appears from the written material that no oral hearing is warranted, the court shall determine the motion. Otherwise, the Court shall order an oral hearing.[^1]
[2] I am satisfied that the materials are sufficiently complete that an oral hearing is unnecessary. I am therefore prepared to determine the motion for leave to appeal on the basis of the written record, facta and books of authorities.
[3] The defendant seeks leave to appeal the decision of Kershman J., dated January 12, 2015 which sets aside the administrative dismissal of this action for damages dated May 18, 2011. A chronology of events leading up to the motion before him is contained at paragraphs 2 to 22. Neither party takes issue with his chronology.
[4] The test on a motion for leave is that 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;
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] The defendant seeks leave on both parts of the test.
[6] I do not consider that the argument concerning the first ground has merit. The defendant contends that the importance of the finality principle in the Court of Appeal decision of Wellwood[^2] constitutes a conflicting decision. Kershman, J. accepted the principle of finality as stated in Marché[^3] which was relied upon in Wellwood and which he accepted.[^4] That does not make it a conflicting decision for the purpose of this ground for leave to appeal. Rather, it is an issue for the application of the principle. There are many different outcomes in different decisions regarding the setting aside of administrative dismissals. It is not the different outcomes that create a conflicting decision. Rather, it is a different principle from courts of the same level, or alternatively, a decision of a court outside of Ontario (perhaps at the appellate level) that have the potential to create conflicting decisions for the purpose of this first branch of the test. This part of the test also requires that a judge be of the opinion that the leave to appeal should be granted to resolve the conflict. In other words not all conflicts must be resolved by a higher court. A judge must be persuaded that an appeal is necessary. I do not consider the defendant has established the grounds necessary to bring itself within the first part of the test.
[7] The second branch of the test is similarly bifurcated and conjunctive. The judge must have good reason to doubt the correctness of the decision and the judge must be persuaded that the proposed appeal involves matters that are of such importance that an appeal should be granted. I am not persuaded that either branch of the test has been met.
[8] The motion judge correctly accepted the law and considered the four Reid principles. I see no error in the relevant legal principles that he considered. Insofar as his application of the principles to the facts before him, it appears that he gave consideration to the evidence before him on the motion for each of the principles and that he weighed the evidence in the context of each of the principles and the submissions of the parties. The test is not whether I would have come to a different decision, but whether I am persuaded by the defendant that the motions judge applied the correct test to the facts and issues before him in a well-reasoned manner. The test is whether the correctness of the decision is open to 'very serious debate.'[^5] While the defendant takes issue with the motions judge’s conclusion concerning three of the factors, I am not persuaded that there was an error in the law he applied, nor his reasoning. I do not consider the motions judge’s observation at paragraph 65 that there was no affidavit from the defendant, to be essential to, or to have formed part of his reasoning in weighing the facts and issues before him.
[9] As for the second branch of the test, the matter must transcend the immediate interests of the parties and "involve matters of public importance and matters relevant to the development of the law and the administration of justice. Where the issues are fact driven, they do not raise issues of general public interest."[^6] "Matters that are not precedent setting and which involve a contractual dispute specific to the parties to the litigation are not of sufficient importance such that leave to appeal should be granted."[^7] I do not consider that the issues raised are of such importance that an appeal should be ordered.
[10] The defendant’s motion for leave to appeal is dismissed.
[11] I am conscious that the summer vacation may make the following dates difficult, and am making the order in recognition of the vacation period. The parties may make costs submissions in writing within 45 days by the plaintiff, 15 days for the defendant, and a further 7 days for reply. If an extension of time is required, the parties may discuss it amongst themselves and let me know in writing.
Honourable Justice Timothy Ray
Released: July 20, 2015
CITATION: Obiorah v. The Ottawa Police Services Board, 2015 ONSC 4643
COURT FILE NO.: 07-CV-39240
DATE: 2015-07-20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NNANYERE OBIORAH
Plaintiff/Responding Party
– and –
THE OTTAWA POLICE SERVICES BOARD
Defendant/Moving Party
REASONS FOR JUDGMENT
Honourable Justice Timothy Ray
Released: July 20, 2015
[^1]: Rule 61.03.1 (14), Civil Rules of Procedure. [^2]: Wellwood v. Ontario Provincial Police, 2010 ONCA 386; 102 O.R. (3d) 555 [^3]: Marché D’Alimentation Denis Theriault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695; 87 O.R. (3d) 660 [^4]: Obiorah v. Ottawa Police Services Board, 2015 ONSC 240; [2015] O.J. No. 151 at para 30. [^5]: King Line Investments Inc. v. 973976 Ontario Inc. [2008] O.J. No. 2592, 2008 CarswellOnt 3904 at paragraph 5 (Div Ct)). [^6]: SLMsoft.com Inc v. Rampart Securities Inc (Trustees of), 2005 CanLII 41549 (ON SCDC), [2005] O.J. No. 4847 at paragraph 81 (Div Ct, Epstein J as she then was.) [^7]: 1468121 Ontario Ltd. v. 663789 Ontario Ltd. [2009] O.J. No. 876 at paragraph 23 (SCJ)).