ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 4492-08
DATE: 2015/07/31
B E T W E E N:
THE ROMAN CATHOLIC EPISCOPAL CORPORATION FOR THE DIOCESE OF SAULT STE. MARIE, IN ONTARIO, CANADA
Daniel Dooley and Sabrina A. Lucenti,
for the Plaintiff/Moving Party
Plaintiff (Moving Party)
- and -
AXA INSURANCE (CANADA)
Kevin Ross, Kelly Tranquilli and
John Nicholson,
for the Defendant/Responding Party
Defendant (Responding Party)
HEARD: In writing
NADEAU j.
REASONS FOR DECISION ON MOTION FOR LEAVE TO APPEAL
[1] An appeal lies to the Divisional Court from an interlocutory order of a judge of the Superior Court of Justice, with leave. 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.
[2] The plaintiff seeks leave under subrule 62.02(4)(a) of the Rules of Civil Procedure on the basis that there is a conflicting decision by another judge in Ontario and the conflicting decision deals with the interpretation of a matter of law of general importance warranting review by the Divisional Court.
[3] In Stamatopoulos v. Harris, 2013 ONSC 7844, DiTomaso J. states:
“In terms of the first requirement of the first branch of the test on motions for Leave to Appeal under Rule 62.02(4)(a), a decision will be a “conflicting decision” within the meaning of Rule 62.02(4)(a) of the Rules of Civil Procedure if a party can demonstrate a difference in the principles chosen by a Judge to guide the exercise of his or her discretion.
In terms of the second requirement of the first branch of the test on motions for Leave to Appeal under rule 62.02(4)(a), where these conflicting decisions on the interpretation of a matter of law are of general importance, the matter should be referred to the Divisional Court to resolve any apparent conflict.”
[4] In 2186080 Ontario Inc. v. 1009558 Ontario Limited 2012, ONSC 2593, Perell J. states:
“In order for leave to be granted under rule 62.02 (4)(a), the moving party must show both: (a) a conflicting decision; and also (b) the desirability of leave to appeal being granted. If leave to appeal is to be granted on the grounds of conflicting decisions, the court must be satisfied not only that there is a conflicting decision but also that it is desirable that leave to appeal should be granted having regard to such factors as what is at stake in the order being challenged, the likelihood of the appeal being successful, the sufficiency of the record for the purposes of deciding the issues on the appeal, and the problems of expense and delay: Minnema v. Archer Daniels Midland Co., [2000] O.J. No. 1685 at para. 34-42 (S.C.J.).”
[5] In Burke v. Michels, 2011 ONSC 2244, Pierce J. states:
“It is settled law that in order to satisfy the test for a conflicting decision it is necessary to show a difference in the principle chosen by the motion judge in coming to his conclusion. See: Brownhall v. Canada (Ministry of National Defence), 2006 7505 (ON SC), [2006] O.J. No. 672, 2006 CarswellOnt 995 (S.C.J.), para. 27.
With respect to the second branch of the test, the court must determine whether the decision is open to “very serious debate.” See Brownhall, para. 30. It is the correctness of the result and not the correctness of the reasoning that must be scrutinized. See: Tarion Warranty Corp. v. Brookegreene Estates Inc., [2006] O.J. No. 1923 (S.C.J.).”
[6] The Reasons on Motion by Justice Gareau sets out in the opening 25 paragraphs the procedural history and background facts here, and no issue is made of these.
[7] On October 6, 2014 the defendant brought a similar motion before Justice Grace in London, Ontario for an order requiring the Bishop of the Diocese of London to re-attend to answer questions refused on his examination for discovery, and to answer any proper questions arising from the answers provided.
[8] Justice Grace’s unreported Endorsement was delivered to counsel October 15, 2014, twelve days before the motion was argued before Justice Gareau on October 27 and 28, 2014. Counsel for the defendant, Kevin Ross, also represented the defendant on the motion before Justice Grace. Mr. Ross did not bring Justice Grace’s decision to the attention of Justice Gareau before or during argument.
[9] For the arguments outlined in their Factum, the plaintiff submits that the Endorsement of Justice Grace dated October 15, 2014 is “a conflicting decision” to the Reasons on Motion dated February 10, 2015 by Justice Gareau. Upon my analysis of these two decisions, and even considering the ‘comparison chart of the issues and decisions rendered’, I have not been persuaded by the plaintiff that Justice Gareau’s decision conflicts with the decision by Justice Grace nor that Justice Grace’s decision is based upon different principles than the ones acted upon by Justice Gareau.
[10] The Endorsement of Justice Grace does not articulate a general legal principle or mode of analysis with respect to Canon Law. The comments by Justice Grace in his Endorsement are directed at specific refusals that were presented to him. Justice Gareau’s Reasons on Motion provide a determination of the threshold issue of the relevance of Canon Law. This threshold issue was never put before Justice Grace. Both Justice Gareau and Justice Grace exercised their discretion to rule on the issues before them. There is no inconsistent application of legal principles or modes of analysis between the two decisions.
[11] Furthermore, upon my comprehensive review here, the question concerning the applicability of Canon Law and Crimen Sollicitationis to the issues raised in this action is not one upon which guidance from an appellate court is needed. As well, that question does not appear to be open to “very serious debate”.
[12] I have determined that the Endorsement dated October 15, 2014 is not a conflicting decision to that made by Justice Gareau on February 10, 2015. Therefore, the first requirement of the first branch of the test for leave to appeal under Rule 62.02(4)(a) has not been met. As a result, it is not necessary for me to consider whether it is desirable that leave to appeal be granted.
[13] I would be remiss not to comment on the decision made by counsel for the defendant not to bring the Endorsement of Justice Grace to the attention of Justice Gareau.
[14] As stated in the Rules of Professional Conduct of The Law Society of Upper Canada:
“5.1-2 When acting as an advocate, a lawyer shall not:
(i) deliberately refrain from informing the tribunal of any binding authority that the lawyer considers to be directly on point and that has not been mentioned by an opponent …”
[15] From A Lawyer’s Duty to the Court by Robert Bell and Caroline Abela:
“Lawyers are under a positive duty to make full disclosure of all the binding authorities relevant to a case. This means that all such authorities on point must be brought before the court, whether they support or undermine the position being argued by that party, even if opposing counsel has not cited such authority. This element of the duty includes drawing a judge’s attention to any legal errors which have been made so that they can be corrected. This duty, however, should not be misconstrued as requiring the lawyer to present a disinterested account of the law. In fact, lawyers are obliged to distinguish those authorities which do not support their client’s position. Thus, while a lawyer does not need to assist an adversary and is permitted to be silent on certain matters, they are not permitted to actively mislead the court.”
[16] From General Motors Acceptance Corp. of Canada v. Isaac Estate 1992 6237 (AB KB), [1992] A.J. No. 1083, cited with approval by McGregor v. Crossland [1997] O. J. No. 2513 (emphasis added):
“It was Mr. Weldon’s responsibility as an officer of the Court to bring Sherwood to my attention. Silence about a relevant decision, especially a binding one, is not acceptable.
I am satisfied that only my fortuitous knowledge of the Queen’s Bench decisions in Sherwood and my disclosure of that knowledge were the events which triggered Mr. Weldon’s disclosure of his knowledge of Sherwood. It is not supposed to be that way.
It would not be an answer to say that Sherwood is distinguishable so it need not be disclosed. That also does not work that way. The fallacy in that argument should be obvious. That would leave it to counsel to decide if a case is distinguishable. Counsel do not make that decision. The Court does.
It is proper for counsel to bring forward a relevant case and then submit that it is distinguishable for whatever reason. That is fair play. It is improper to not bring forward a relevant case on the ground that it is distinguishable. That is not fair play.”
[17] Although the decision by Justice Grace may be persuasive on Justice Gareau, rather than a binding authority, it is nevertheless clearly a relevant decision. Counsel for the defendant concedes as much in their submission by stating: “In fact, Justice Grace’s ruling is consistent with the pronouncements of Justice Gareau.”
[18] Justice Gareau was of the view that it might have been preferable for it to be disclosed and that it might have assisted. I agree. It is for that reason there is a positive duty on lawyers to disclose and inform; confirming that the task of determining whether or not a relevant case is distinguishable is for the Court to decide. Not for the lawyer.
[19] For these reasons, this motion for leave is dismissed.
[20] Unless the defendant makes submissions in writing to me within 7 days of the date of my reasons not granting leave to appeal, and if then the plaintiff within 7 days thereafter, there shall be no order as to costs for this motion in writing.
Nadeau J.
Released: July 31, 2015
COURT FILE NO.: 4492-08
DATE: 2015/07/31
ONTARIO
SUPERIOR COURT OF JUSTICE
THE ROMAN CATHOLIC EPISCOPAL CORPORATION FOR THE DIOCESE OF SAULT STE. MARIE, IN ONTARIO, CANADA
Plaintiff (Moving Party)
– and –
AXA INSURANCE (CANADA)
Defendant (Responding Party)
REASONS FOR DECISION ON MOTION FOR LEAVE TO APPEAL
Nadeau J.
Released: July 31, 2015