CITATION: Shah v. Real Canadian Superstore, 2016 ONSC 630
COURT FILE NO.: DC-15-129-ML
DATE: 20160126
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: KAMLESHBHAI SHAH, Plaintiff
AND:
REAL CANADIAN SUPERSTORE and LOBLAW COMPANIES LIMITED, Defendants
AND:
G & K SERVICES INC., Third Party
BEFORE: Justice F. Dawson
COUNSEL: Barjinder Kalsi and Yousef Jabbour, Counsel, for the Plaintiff
S. Wayne Morris, Counsel, for the Defendants
Lisa A. Penick and Abhishek Joshi, Counsel, for the Third Party
HEARD: January 25, 2016, In writing
ENDORSEMENT
Introduction
[1] The applicant Kamleshbhai Shah seeks leave to appeal from the order of Lemon J. dated October 6, 2015. In that order the motion judge granted an order for security for costs against the applicant/plaintiff in favour of the respondent/defendant Real Canadian Superstore and Loblaw Companies Limited. A similar motion made by the third party was dismissed.
[2] In his statement of claim the applicant alleges that on February 3, 2012 he tripped over a mat at a Real Canadian Superstore located at 85 Steeles Avenue West in Brampton resulting in an injury to his shoulder. The fall was not witnessed by any Loblaw employee. The applicant did not report the incident. The next day he flew to India. He did not seek medical attention until February 9, 2012 in India. He later underwent surgery on his shoulder. The defendants take the position that this accident did not occur.
[3] The plaintiff is a citizen of India. He is 67 years of age. He had been living in Canada as a permanent resident. However, he returned to India when his permanent resident card expired. His examination for discovery was conducted by way of video link while he remained in India.
[4] Shortly before the motion for security for costs was to be heard the plaintiff provided evidence that he had purchased a Legal Protection Certificate and Indemnity Agreement from an insurer which he submitted constituted sufficient security for the defendants’ costs.
[5] The adequacy of the Indemnity Agreement was an issue before the motion judge who ultimately concluded that it did not provide adequate security for the defendants’ costs.
Test for Leave to Appeal
[6] 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.
[7] 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.).
[8] 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
[9] I have come to the conclusion that leave to appeal must be denied.
[10] Under the first branch of the test I am not persuaded that Lemon J.’s decision is in conflict on a matter of principle with any other decision in Ontario or elsewhere. Justice Lemon applied the well-known test for security for costs. Contrary to the submissions of the applicant, I am satisfied that he took the existence of the Indemnity Agreement into account as one factor in his analysis. That is consistent and not inconsistent with the cases referred to by the applicant. The Indemnity Agreement was the subject of considerable argument on the motion and was specifically referred to by the motion judge. He explained why he had misgivings about whether the agreement provided the respondents with any real protection in relation to their costs. Those concerns went well beyond the concerns addressed in correspondence from the insurer who issued the policy which counsel for the applicant referred the motions judge to.
[11] Nor am I persuaded that there is good reason to doubt the correctness of the motion judge’s decision. Again, the judge articulated the correct test. He provided a reasoned decision. He made a number of factual findings which, contrary to the submissions of the applicant, I am satisfied were supported by the evidence and not unreasonable. He found that the evidence was insufficient to establish that the applicant was impecunious. He made specific reference to a number of important considerations which are commonly addressed when considering an application for security for costs as part of determining that the order is “just” pursuant to Rule 56.01(1). It appears to me that the motion judge took all relevant factors into account, having regard to the circumstances of this particular case.
[12] The applicant emphasizes his submission that the motion judge failed to take the merits of the applicant’s claim into account. I disagree. The motion judge made specific reference to the merits of the applicant’s case but concluded that in the circumstances he could make no finding in regard to the degree of merit. He tied that finding to the absence of medical reports and to the importance of credibility determinations that would have to be made at trial. This was a situation in which the applicant claimed he had been injured by falling down but where the matter was not brought to the attention of the respondents for a considerable period of time. The respondents take the position that the incident did not happen. Considering evidence and not being able to make a finding as to the merits is far different than failing to take the merits of the applicant’s claim into account.
[13] The applicant also alleges that the motion judge erroneously found that the applicant was not ordinarily resident in Ontario on the basis that his permanent resident card had not been renewed. The applicant submits this is an error because the judge equated the expiry of the applicant’s permanent resident card with a finding that the applicant was no longer a permanent resident of Canada. The applicant submits that there was no evidence to support such a finding.
[14] However, I note that at paragraph 17 of the applicant’s affidavit sworn August 20, 2015 (Application Record, p. 501) he swore that he “was not legally entitled to remain in Canada” and decided to return to India where he is a citizen.
[15] The applicant appears to be attempting to re-argue the original motion on this application. The application contains a number of similar submissions to the effect that the motion judge made unreasonable factual findings, misapprehended evidence or failed to take evidence into account. I am not persuaded that it is open to serious debate that any such errors were made by the motion judge.
[16] As the application fails at the first stage of each of the branches of the tests established by Rule 62.02(4) I need not consider the second stage of either branch of the test. However, as this case involves issues related to the purchase of insurance by a plaintiff to protect against adverse costs orders, a matter of emerging importance, I may well have found that the second stage of either test had been met had the applicant met the first stage of either test.
[17] For the foregoing brief reasons the application for leave to appeal is dismissed.
Costs
[18] If the parties are unable to agree on costs they should exchange brief written submissions and provide them to me within 30 days.
Justice F. Dawson
Date: January 26, 2016
CITATION: Shah v. Real Canadian Superstore, 2016 ONSC 630
COURT FILE NO.: DC-15-129-ML
DATE: 20160126
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KAMLESHBHAI SHAH, Plaintiff
AND:
REAL CANADIAN SUPERSTORE and LOBLAW COMPANIES LIMITED, Defendants
AND:
G & K SERVICES INC., Third Party
ENDORSEMENT
Justice F. Dawson J
Released: January 26, 2016