Introduction

[1] The defendant, Paul Mariai (“Mariai”) seeks leave to appeal from the order of The Honourable Justice Perell dated October 23, 2015. In that order, the motion judge dismissed Mariai’s motion for a dismissal of the action under rule 21.01(1)(a) of the Rules of Practice.

[2] The plaintiffs’ Daniels Midtown Corporation and Daniels Corporation (collectively “Daniels”) action is against Mariai for damages for slander and libel. There is also a claim for punitive, aggravated and exemplary damages.

[3] The action arises out of the construction by Daniels of a residential condominium in Toronto. Mariai is the owner of a unit in the condominium. He was also at various times, a member of the board of the condominium and the president.

[4] The alleged false and defamatory statements by Mariai as particularized in the amended statement of claim and response to the demand for particulars and reply were made in a status certificate, at unit owners’ meetings and in a letter to unit owners.

[5] Mariai’s defence as pleaded in his statement of defence is, among other things, that he is protected by the defence of absolute and qualified privilege.

[6] Mariai moved to dismiss the action pursuant to rule 21.01(1)(a) on the grounds that he was protected by the defence of absolute and qualified privilege and pursuant to rule 21.01(3)(d) on the grounds that the action was an abuse of process.

[7] In dismissing Mariai’s motion, the motions judge held that the question of whether the defences of absolute or qualified privilege apply is not an issue of law but rather one of mixed fact and law which cannot be decided on a motion under rule 21.01(1)(a). He further stated that Mariai was using rule 21.01(1)(a) in an improper way in that it was not designed to have a defendant prove his or her defences. Finally, in respect of the rule 21.01(3)(d) motion, the motion judge noted that the only evidence was from Daniels asserting that the action was a genuine defamation claim and not for some improper purpose.

Test for Leave to Appeal

[8] The test for granting leave to appeal under rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

[9] Under rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.).

[10] Under rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).

Analysis

[11] In my view, Mariai’s motion for leave fails both tests set out in rule 62.02(4). In my view, Mariai has not established that there are any conflicting decisions. The three cases relied upon by Mariai do not conflict with the motions judge’s decision. Contrary to this case, in each case relied upon the material facts were not in dispute.

[12] Further, there is also no good reason to doubt the correctness of the motion judge’s decision. The motions judge correctly set out the test for a motion under rule 21.01(1)(a) and correctly applied it, given the pleadings before him. At the very least, the allegations in the pleadings give rise to material facts in dispute in respect of Mariai’s defence of absolute or qualified privilege. Accordingly, rule 21.01(1)(a) is not engaged. Further, based on the pleading and the evidence before him, there is also no good reason to doubt the correctness of the motions judge’s decision to dismiss the motion under rule 21.01(3)(d).

[13] Finally, I do not consider that the proposed appeal raises any matters of such importance that leave should be granted. The test under rule 21.01(1)(a) is well established. The motions judge applied the test to the pleadings before him. The issue of whether the defence of absolute or qualified privilege applies must be determined on a complete factual record.

Conclusion

[14] For the above reasons, Mariai’s leave to appeal motion is dismissed.

[15] Daniels is entitled to its costs of the motion on a partial indemnity basis. Having regard to the cost outlines from both parties, I consider Daniels’ request for partial indemnity costs of $4,238.07 to be fair and reasonable given the issues raised. It is also well within the expectations of Mariai based on his counsel’s cost outline.

[16] Costs to Daniels fixed at $4,238.07 inclusive of disbursements and taxes. Payable forthwith.

L. A. Pattillo J.

Date of Release: March 8, 2016

Daniels Midtown Corporation v. Mariai, 2016 ONSC 1656

Case Summary

Introduction

Test for Leave to Appeal

Analysis

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Legal Tests 1