CITATION: Kwandibens v. Whitesand First Nation et al, 2016 ONSC 544
COURT FILE NO.: CV-15-0236-SR
DATE: 2016-01-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
YVETTE ROSE KWANDIBENS
Bradley Smith, for the Plaintiff (Respondent)
Plaintiff (Respondent)
- and -
WHITESAND FIRST NATION AS REPRESENTED BY ALLAN GUSTAFSON, RAYMOND KWANDIBENS, RENE WILSON, JERMAINE NODIN, ALEX WANAKAMIK AND PAUL MATINET
Samuel Crowe, for the Defendant (Applicant)
Defendant (Applicant)
HEARD: In Writing at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons on Application for Leave to Appeal
Introduction
[1] The defendant seeks leave to appeal from the order of Pierce J. dated December 10, 2015. In that order, the motion judge ordered that the Chief of Whitesand First Nation, Alan Gustafson be discovered as a representative of the defendant. The defendant had resisted this order, arguing that another representative of the defendant should be the person to be discovered.
Test for Leave to Appeal
[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 CanLII 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 CanLII 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 1992 CanLII 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 CanLII 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 CanLII 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.).
Analysis
[5] The second part of each arm of Rule 62.02(4) focuses on the importance of the appeal to litigants generally rather than the particular parties. This is a procedural motion relevant to the conduct of this particular litigation. I do not find that it is either desirable that leave to appeal be granted or that this issue is of such importance that leave should be granted. Further, I do not find that there are conflicting decisions with respect to the applicable principles nor do I have any reason to doubt the correctness of the order. I agree with the statement of Pierce J. that the court "cannot substitute its opinion for that of counsel conducting his client's case."
[6] Therefore, this application for leave to appeal is dismissed. The plaintiff/respondent shall have her costs of this application for leave to appeal fixed at $2500 plus HST payable within 30 days.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: January 21, 2016
CITATION: Kwandibens v. Whitesand First Nation et al, 2016 ONSC 544
COURT FILE NO.: CV-15-0236-SR
DATE: 2016-01-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
YVETTE ROSE KWANDIBENS
Plaintiff (Respondent)
- and -
WHITESAND FIRST NATION AS REPRESENTED BY ALLAN GUSTAFSON, RAYMOND KWANDIBENS, RENE WILSON, JERMAINE NODIN, ALEX WANAKAMIK AND PAUL MATINET
Defendant (Applicant)
REASONS ON APPLICATION
FOR LEAVE TO APPEAL
Newton J.
Released: January 21, 2016
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