Court File and Parties

COURT FILE NO.: CV-12-03165-00 DATE: 2017 05 09 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Tribecca Finance Corporation and Yogesh Shah and Rita Shah, Plaintiffs AND: Ani Tabrizi and Haroutioun Tabrizi, Defendants

BEFORE: Justice Ivan S. Bloom

COUNSEL: K. Prehogan and Scott McGrath, Counsel, for the Defendants, the Moving Parties, Neil G. Wilson, Counsel for the Plaintiff, Tribecca Finance Corporation, the Responding Party

HEARD: In writing

Endorsement

Introduction

[1] The Moving Parties seek leave to appeal from the order of Justice D. Baltman dated January 26, 2017. In that order, the motions judge ordered that the Moving Parties answer questions refused at their examination in aid of execution on January 25, 2016. The Moving Parties also seek an extension of time within which to file the Notice of Motion for leave to appeal, and a stay of the order pending the final disposition of the appeal.

[2] The examination in aid of execution arose out of a judgement obtained by the Responding Party on a mortgage. The judgement was for $497,120.75 plus costs of $101,789.09 with interest accruing at a rate of 14% compounded monthly. At the time of the order subject of the motion at bar, over $800,000.00 was owed. The mortgage loan was made to finance the building of what the motions judge found to be “a large and luxurious home” for the Defendants who are husband and wife.

[3] Some of the refusals pertained to questions relating to four corporations which are wholly owned by the husband, who is also President of each. Some refusals related to information concerning the parents of the Moving Parties; some refusals related to transfers to the children of the Moving Parties.

Test for Leave to Appeal

[4] 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.

[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 (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.).

[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.).

Analysis

[7] I will address the question of leave to appeal, since by virtue of the view I take on that issue, I need not address the other two forms of relief sought by the Moving Parties.

[8] First, considering the test under Rule 62.02(4)(a), I do not consider Ener Works Inc. v. Glenbarra Energy Solutions Inc., 2012 ONSC 748, a decision of Master Short, a conflicting decision within the meaning of the rule. It is a decision of a lower level court; further, it is in my opinion a situation in which a different result was reached in respect of particular facts. Moreover, I do not find that it is desirable that leave to appeal be granted; as noted by the motions judge, there is “compelling evidence” that the Moving Parties “have set out to deliberately frustrate the recovery of the” judgement debt.

[9] Second, addressing the test under Rule 62.02(4)(b), I see no good reason to doubt the correctness of the order in question. Rule 60.18 (2) fully supports it. Moreover, this case raises no matters of importance that go beyond the interests of the immediate parties; the motions judge simply applied the applicable rule in accordance with its plain language.

Order and Costs

[10] Since I have decided that leave to appeal would not be granted in any event, I need not address the other two forms of relief sought.

[11] If the parties cannot agree on costs, I will receive written submissions on that matter of no more than three pages, excluding a bill of costs. The Responding Party is to serve and file its submissions within two weeks of release of this endorsement. The Moving Parties are to serve and file their submissions within two weeks of service of those of the Responding Party. There shall be no reply.

Bloom J. Date: May 9, 2017

COURT FILE NO.: CV-12-03165-00 DATE: 2017 05 09 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Tribecca Finance Corporation and Yogesh Shah and Rita Shah, Plaintiffs AND: Ani Tabrizi and Haroutioun Tabrizi, Defendants ENDORSEMENT Bloom J. Released: May 9, 2017