COURT FILE NO.: 263/16 DATE: 20161019

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: LIBAN GAASHAAN, Applicant/Moving Party AND: DEQA GELLE, Respondent/Responding Party

BEFORE: MOLLOY J.

COUNSEL: V. C. Herd, for the Applicant/Moving Party L. Cuellar, for the Respondent/Responding Party

HEARD: In writing

ENDORSEMENT

Introduction

[1] The applicant seeks leave to appeal from the order of Hood J. dated May 19, 2016. In that decision, the motion judge held that records from the parties’ marriage counselling sessions were privileged and that the respondent was therefore not required to consent to their release for use in the matrimonial litigation between the parties.

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), 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] O.J. No. 3442 (S.C.J. per Then J.); Ash v. Lloyd’s Corp. (1992), 8 O.R.(3d) 282 (Gen. Div. per Farley J.). 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. per Catzman J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).

Analysis

[5] The applicant does not specify which branch of Rule 62.02(4) is relied upon. However, no conflicting decisions on a matter of principle were referenced. Therefore, the test under Rule 62.02(4)(a) is not met.

[6] The thrust of the applicant’s submissions relate to the correctness of the motion judge’s order. The real question, therefore, is whether the test under Rule 62.02(4)(b) is met. I find that test is not satisfied.

[7] I see no reason to doubt the correctness of the motion judge’s decision. His reasons were handwritten and not lengthy, but they show the path of reasoning both with respect to the principles of law applied and the basis upon which those principles were applied to the facts of this particular case.

[8] The motion judge correctly articulated the legal principles to be analyzed in considering whether the documents in question were privileged. He applied the principle of proportionality. He held, applying the Wigmore test, that the interest in protecting the confidentiality of what was said during marriage counselling outweighed the limited, if any, relevance of the records sought. This was an exercise of discretion and entitled to deference.

[9] I see no basis to doubt the correctness of the decision of the motion judge.

[10] Furthermore, this is a matter that turned on the particular facts of the case and the issues between these two parties. There is no question of general importance going beyond the interests of the immediate parties, nor are there questions of general or public importance relevant to the development of the law and administration of justice. The general law is well-settled. The grounds of appeal relate to the application of that law within the context of the circumstances between these two parties.

[11] As such, the applicant has failed to meet both aspects of the test for leave to appeal under Rule 62.04(b).

[12] It follows that this motion for leave to appeal is dismissed.

[13] The respondent/responding party is entitled to her costs of this motion. Unfortunately, neither party addressed the quantum of costs in their materials. If costs cannot be agreed upon between the parties, the respondent shall make written submissions by October 26, 2016, and the moving party may reply within 7 days of receipt of those submissions.

MOLLOY J. Date: October 19, 2016