Court File and Parties
Court File No.: 15-66772 Date: 2016-09-07 Superior Court of Justice
Re: Raymond Carby-Samuels II, Plaintiff / Appellant And: Horace R. Carby-Samuels, Defendant / Respondent
Before: Mr. Justice P.E. Roger
Counsel: Self-represented Plaintiff John E. Summers, Counsel for the Respondent
Heard: In writing
Endorsement
Introduction
[1] The Plaintiff seeks leave to appeal from the order of Justice James E. McNamara, dated June 8, 2016. In that order, the motion judge set aside the noting in default and default judgment of February 11, 2016. He also consequently dismissed the Plaintiff's contempt motion and dismissed the Plaintiff's motion to add an Application for guardianship.
[2] The Plaintiff is the son of the Defendant. The Plaintiff was removed from the Defendant’s home and seeks access to his mother, who is also the wife of the Defendant. Coincidentally, the Plaintiff appeared twice before me in procedural motions court, once in December 2015 and once more shortly thereafter approximately in early January 2016. On both occasions I declined to make any order as the materials were deficient. It appears that the Plaintiff then filed materials in writing and that a default judgment was granted by this court on February 11, 2016. Early in March 2016 the Defendant brought a motion seeking to set aside the default judgment, which lead to the Order of McNamara J. of June 8, 2016.
[3] The Plaintiff is self-represented and his materials are disorganized. His notice of motion for leave to appeal makes reference to the wrong courts and to the wrong rules. The earlier motion to set aside the default judgment was brought under rule 19.08 and, in any event, all motions were heard by a judge of this court sitting as a Superior Court Judge. An order setting aside a default judgment is interlocutory for purposes of appeal. An order dismissing a contempt motion is also interlocutory for purposes of appeal. Lastly, the order dismissing the Plaintiffs motion requesting an application for guardianship was as well interlocutory as it did not dispose or terminate of any proceeding for guardianship. Consequently, leave is actually sought under section 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, C. C.43 (“CJA”) and under rule 62.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”).
[4] The test for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure 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.
[5] 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 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.).
[6] 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.).
[7] None of the arguments and cases referred to by the Plaintiff constitutes a conflicting decision and none convinces me that it is desirable that leave be granted. Further, none of the arguments and cases referred to by the Plaintiff create any reason to doubt the correctness of any of the orders made by McNamara J. in this matter on June 8, 2016, and, in any event, none raises matters of such importance that, in my opinion, leave should be granted.
[8] Leave to appeal the order of June 8, 2016 is therefore dismissed.
[9] The Defendant seeks costs of this motion in the amount of $5,000. The Defendant was successful and is presumptively entitled to costs. The Plaintiff delivered voluminous, disorganised and irrelevant materials that largely fail to address what is at issue under rule 62.02 (4) such that this motion was an unnecessary step. However, this is not a complicated matter and the amount sought seems out of proportion to the complexity and to the appropriate although limited extent of materials delivered by the Defendant. Considering all of the factors outlined at rule 57.01, a more reasonable amount for the costs of this motion is $1,500 all-inclusive, which amount the Plaintiff shall pay to the Defendant within the next 90 days.