Court File and Parties

CITATION: Wagg Estate v. First Associates Investments Inc., 2016 ONSC 6708

COURT FILE NO.: 321/16

DATE: 20161027

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: John C. Chaplin, Estate Trustee of the Estate of Nancy Ritva Wagg, deceased, Plaintiff/ Responding Party

AND:

First Associates Investments Inc. and Clifford Todd Monaghan, Defendants/ Moving Party

AND:

John Eric Wagg, Third Party

BEFORE: H. Sachs J.

COUNSEL: Nigel Campbell and Doug McLeod, for the Moving Party, First Associates Investments Inc.

Patricia L. McLean, for the Plaintiff/ Responding Party

HEARD at Toronto: In writing

ENDORSEMENT

[1] This is a motion by First Associates Investments Inc. for leave to appeal the decision of Newbould J., released on June 14, 2016, dismissing its motion for summary judgment. The Defendant, Clifford Todd Managhan, and the Third Party, John Eric Wagg, filed no material on the motion.

[2] The claim against the Defendants is a claim for damages caused by the Defendants’ alleged breach of contract, negligence and breach of fiduciary duties. In 2015, 13 years after the proceeding was commenced, First Associates brought a motion for summary judgment seeking an order dismissing the proceeding as against it on the basis that the claim is statute-barred. The motion judge found that there was a triable issue as to whether there had been fraudulent concealment by First Associates, such that they cannot invoke the limitations period in the Trustee Act.

[3] 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.

[4] 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.).

[5] 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.).

[6] With respect to the first branch of the test for leave to appeal, this is not a case where the Moving Party is alleging that there are two lines of authority on the issue of fraudulent concealment and the law needs to be clarified by the Divisional Court. Both parties relied on the same authorities. The Moving Party alleges that the motion judge did not properly apply those authorities, which is tantamount to an argument that there is good reason to doubt the correctness of the motion judge’s order. It is also worth noting that the motion judge made no final determination on the issue of fraudulent concealment. He just found that the issue could be better addressed after a trial. In assessing whether the second part of first branch of the test for leave to appeal is satisfied, the fact that the case lives on and the final rights of the parties will be determined at trial is a basis for finding that it is not desirable to grant leave to appeal (Silver et al. v. IMAX, 2001 ONSC 1035, at para. 11).

[7] As outlined above, the test under Rule 62.02(4)(b) is also two-fold. If the Moving Party has failed to establish that the appeal raises issues of public importance beyond the interests of the parties, it is not necessary to determine whether there is good reason to doubt the correctness of the order. In this case, the Moving Party is essentially arguing that the motion judge misapplied the governing law to the facts before him. This is not an issue that involves questions of general or public importance relevant to the development of the law and administration of justice. This is especially so when the decision of the motion judge did not finally determine how the law of fraudulent concealment applied to the facts of the case before him. That will only be done at a trial on the basis of a complete factual record.

[8] For these reasons, the motion for leave to appeal is dismissed. As the successful party, the Plaintiff is entitled to his costs of this motion. He has requested costs in the amount of $4,441.47, which I find to be a reasonable and proportionate amount. In contrast, the Moving Party filed a Costs Outline requesting costs on a partial indemnity basis of almost $20,000.00. The Moving Party shall pay the Plaintiff his costs, fixed in the amount of $4,441.47, within 30 days of the release of this endorsement.

H. SACHS J.

Date: 20161027