Court File and Parties
COURT FILE NO.: 16-2191 DATE: 2016/06/22 SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN: NORMA WEXLER, Plaintiff
AND: CARLETON CONDIMINIUM CORPORATION NO. 28, Defendant
BEFORE: Justice P. Roger
COUNSEL: Self-represented Plaintiff Antoni Casalinuovo, counsel for the Defendants
HEARD: In Writing
Endorsement
[1] This is a motion for leave to appeal to the Divisional Court from the order of Deputy Judge Raymond H. Gouin, of the Small Claims Court at Ottawa, dated February 18, 2016.
[2] Section 133(b) of the Courts of Justice Act, R.S.O. 1990, C. C.43 (“CJA”) provides that no appeal only as to costs that are in the discretion of the court that made the order for costs lies without leave of the court to which the appeal is to be taken.
[3] Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that 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.
[4] The moving party seeks leave to appeal alleging that Deputy Judge Gouin erroneously relied on Article X of the Respondent’s Condominium Corporation Declaration, despite the findings of this Court in Pearson (Litigation Guardian of) v. Carleton Condominium Corporation No. 178, 2012 ONSC 3300, contrary to s. 29 of the CJA.
[5] For the reasons set out below, the motion for leave to appeal is granted.
[6] The ratio of the decision of Deputy Judge Gouin is found at paragraph 18 of his decision. As is obvious from reading that paragraph, he relied “especially” on his reasoning that it would be unfair that other unit owners should bear the costs of this litigation considering Article X of the Respondent’s Declaration.
[7] It is my view that the decision referenced by the Applicant (Pearson (Litigation Guardian of) v. Carleton Condominium Corporation No. 178, 2012 ONSC 3300) demonstrates a difference in principles chosen to guide discretion. As such, it is a conflicting decision for the purpose of rule 62.02(4)(a). Indeed, in Pearson, this Court held that a very similar article to Article X (Article XIX in Pearson) had no application as there had been no loss, cost, damages or injury to the common elements. I point out that Article X makes no mention of legal costs and that Article X requires the loss, costs, damages, injury or liability whatsoever be to or with respect to common elements and/or all other units. Here, the Deputy Judge was dealing with legal costs that seem to have no connection to the common elements such that his decision conflicts with the decision on this point in Pearson.
[8] I find that the second branch of the test is also made out as it is desirable to grant leave to appeal as disputes of this nature, involving condominium corporations are frequently before the Small Claims Court and the proper interpretation of such provisions and their potential impact on costs awards, considering s. 29 of the CJA, reaches that threshold.
[9] Further, I find that there is good reason to doubt the correctness of the Deputy Judge’s decision and that the appeal raises matters of general importance, considering s. 29 of the CJA.
[10] The phrase “good reason to doubt the correctness of a decision” does not require a conclusion that the decision in question was wrong or even probably wrong. Nor does it require that the judge hearing the leave motion would have decided it differently had he or she been presiding as the motion judge. The test is whether the decision is open to serious debate.
[11] I find that the decision of the Deputy Judge is open to serious debate. In exercising his discretion over costs, the Deputy Judge seems to have placed significant emphasis on irrelevant considerations. As indicated above, he indicates at paragraph 18 that he relies “essentially” on his finding that it would be unfair considering the condominium declaration. Section 29 of the CJA provides for an exception which does not incorporate such considerations. Consequently, there are good reasons to doubt correctness as the Deputy Judge appears to have exceeded his jurisdiction.
[12] No submissions have been made on the issue of costs of the leave to appeal and these are reserved to the Court hearing this appeal.