Endorsement

COURT FILE NO.: 16-767-ML DATE: 2017-02-23 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Verge Insurance Brokers Limited, 172968 Ontario Inc., Marick Bros. Investments Inc. and Mark Sherk, Plaintiffs/Responding Parties AND: Richard Sherk, Daniel Sherk, Martin, Merry & Reid Limited and Cal Schulz Insurance Brokers Ltd., Andree Senn, Brenda French and Ruth Pluska, Defendants/Moving Party

BEFORE: The Honourable Justice C.D. Braid

COUNSEL: George Limberis, Counsel for the Moving Defendant, Daniel Sherk Stephen Gleave & Ian Dick, Counsel for the Responding Plaintiffs

HEARD: In writing

I. Introduction

[1] The defendant Daniel Sherk seeks leave to appeal from the order of Justice Arrell dated November 8, 2016. That order denied various requests for relief regarding production of documents.

[2] Mr. Sherk brought a motion before Justice Arrell to request the following:

a) A declaration that the plaintiffs have not complied with the order of Quinn J. dated March 19, 2015 and Turnbull J.’s endorsement dated June 6, 2016;

b) An order that the plaintiffs must restore and review backup tapes for 2011 to 2012 to identify relevant documents and then provide a better affidavit of documents pursuant to the above two orders; and

c) Production of one of the plaintiffs for further discoveries on new material produced.

[3] Justice Arrell dismissed Mr. Sherk’s motion, but ordered that the 66 backup tapes be made available to Mr. Sherk upon request.

II. Test for Leave to Appeal

[4] In this case, the moving party relies on Rule 62.02(4)(b) to request leave. The test for granting leave to appeal under this rule is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. Both aspects of the two-part test must be met before leave may be granted.

[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 ONSC 40868, [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 1992 ONSC 7652, 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 ONSC 2749, 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 ONSCDC 4842, 65 O.R. (2d) 110 (Div. Ct.).

III. Analysis

[6] This was a procedural motion that does not involve matters of general or public importance. The issues do not go beyond the interests of the immediate parties. The proposed appeal does not raise matters of such importance that leave should be granted.

[7] Since the second part of the test for leave is not satisfied, it is not necessary to fully address the merits of the order under appeal. However, I note that Justice Arrell reviewed the terms of the earlier orders, considered evidence concerning compliance with those orders and determined that the orders had been complied with. Justice Arrell has ordered that the plaintiffs produce the 66 backup tapes upon request. If the defendant still has concerns about the documents, he may conduct his own review of the records.

IV. Conclusion

[8] The motion seeking leave to appeal to the Divisional Court is dismissed.

[9] If the parties on this motion are able to agree on costs of this motion, they are to communicate their agreement to me by March 10, 2017. In the event that the parties cannot agree as to costs, they are directed to provide written submissions as to costs. The submissions shall be no longer than two typed pages, double-spaced, in addition to any Bill of Costs. The parties on the motion shall deliver their submissions to my chambers at the Kitchener courthouse by March 24, 2017.

Braid, J. Date: February 23, 2017