Court File and Parties

COURT FILE NO.: 630/15 DATE: 20160503 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KERSASP SHEKHDAR, Plaintiff/Moving Party AND: BEARD WINTER LLP and ROBERT C. HARASON, Defendants/Responding Parties

BEFORE: H. Sachs J.

COUNSEL: Kersasp Shekhdar, on his own behalf Gavin J. Tighe and Rob L. Winterstein, for the Responding Parties

HEARD at Toronto: In Writing

Endorsement

[1] The Moving Party seeks leave to appeal the Order of Diamond J., dated November 20, 2015, which order dismissed the Moving Party’s appeal of the Order of Master Graham staying the within action pending the payment by the Moving Party of numerous outstanding costs orders. The basis for the within motion is that Diamond J., together with other Masters, conspired together to suppress the Moving Party’s claims.

[2] 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.

[3] 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), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div. Ct.).

[4] 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 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J.); and, Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 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), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J.); and, Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.).

[5] The Moving Party has failed to meet the test for leave to appeal set out above. He has not established that there are any conflicting decisions of another judge or court in Ontario or elsewhere. He has also not established that there is any reason to doubt the correctness of the decision he seeks to appeal. Further, the proposed appeal does not involve matters of such importance that leave to appeal should be granted.

[6] For these reasons, the motion for leave to appeal is dismissed.

[7] While I agree with the Responding Parties that this motion was ill-founded and ought not to have been brought, I decline to award them substantial indemnity costs. They are entitled to their partial indemnity costs, which I fix in the amount of $3000.00, all inclusive.

H. SACHS J. Date: 20160503

cited_cases: legislation: - title: "Rules of Civil Procedure, R.R.O. 1990, Reg. 194" url: "https://www.ontario.ca/laws/regulation/900194" case_law: - title: "Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.)" url: "https://www.canlii.org/en/on/onsc/doc/1992/1992canlii7405/1992canlii7405.html" - title: "Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J.)" url: "https://www.canlii.org/en/on/onsc/doc/2003/2003canlii40868/2003canlii40868.html" - title: "Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.)" url: "https://www.canlii.org/en/on/onsc/doc/1992/1992canlii7652/1992canlii7652.html" - title: "Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J.)" url: "https://www.canlii.org/en/on/onsc/doc/1986/1986canlii2749/1986canlii2749.html" - title: "Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.)" url: "https://www.canlii.org/en/on/onscdc/doc/1988/1988canlii4842/1988canlii4842.html"