Court File and Parties

COURT FILE NO.: 015/17 DATE: 20170510 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TORONTO STANDARD CONDOMINIUM CORPORATION NO. 2297, Moving Party AND: SERGIO RUIVO and AMEED AL-MASRI, Responding Parties

BEFORE: MARROCCO A.C.J.S.C.

COUNSEL: Jonathan H. Fine and Dalia Yonadam, for the Moving Party Sergio Ruivo, In Person Ameed Al-Masri, In Person

HEARD: In Writing

Leave to Appeal Endorsement

[1] The moving party seeks leave to appeal the interlocutory order of the motion judge dated December 29, 2016.

[2] This motion arises out of a proceeding that commenced as an application for a range of injunctive and/or declaratory relief brought by the moving party against the responding parties.

[3] On October 4, 2016, the motion judge granted interlocutory relief to the moving party. The motion judge adjourned the balance of the moving party’s application upon terms to permit Ameed Al-Masri to file responding material. Mr. Al-Masri filed a significant volume of responding material but not in proper affidavit form. When the matter came on again before the same motion judge on December 6, 2016, the motion judge again adjourned the matter so that Mr. Al-Masri could refile his responding material in proper affidavit form. This matter came on again before the same motion judge on December 21, 2016 and Mr. Al-Masri attempted to file his material in affidavit form but in fact had only sworn an affidavit of service. The motion judge accepted Mr. Al-Masri’s explanation that he thought he had complied with the rules and, in the interests of justice, received Mr. Al-Masri’s material on the motion.

[4] After considering the material, the motion judge decided, in an order dated December 29, 2016, to convert the application into an action and order a trial because the material contained extensive factual disputes and raised numerous issues of credibility. In the interim, the motion judge made an order prohibiting Mr. Al-Masri from having any contact with the concierge desk at the moving party.

[5] The moving party submits that the motion judge erred by relying on Mr. Al-Masri’s unsworn material and seeks leave to appeal the December 29, 2016 order.

[6] Leave to appeal is denied.

[7] The test for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, 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.

[8] 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.”

[9] 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, 55 O.A.C. 316 (Div. Ct.).

[10] The moving party has not pointed to any decisions that conflict with respect to matters of principle, as opposed to decisions in which judges have exercised their discretion differently on different facts.

[11] In its factum, at para. 43, the moving party says that the motion judge’s decision conflicts with various decision of Ontario courts cited at paras. 44-52, 58-65, 68, 72 of the factum. The only one that is arguably a “conflicting decision” is Luxon v. Bethesda Home for the Mentally Handicapped Inc., 2005 CarswellOnt 71, [2005] O.J. No. 58 (BOA, Tab 25) where Quinn J. held, at paras. 19-22, that it would be inappropriate to allow the plaintiff to lead evidence other than by affidavit in a summary trial under Rule 76. The present case is distinguishable from Luxon. In this case, the motion judge relied on the responding party’s materials to conclude there were factual disputes requiring both a trial and the conversion of the application to an action; the materials, with which we are concerned, were not used in a trial.

[12] 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 – the first part 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.T.C. 794, 3 C.C.L.I. (4th) 149 (Sup. Ct.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282. 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 the administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569; Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110, 30 O.A.C. 53 (Div. Ct.).

[13] The Superior Court of Justice has an inherent jurisdiction in civil and criminal matters. In Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, the Supreme Court of Canada cited with approval an article by I.H. Jacob entitled “The Inherent Jurisdiction of the Court” ((1970) 23 Curr. Legal Probs. 23), which defined, at p. 51, the court’s inherent jurisdiction in the following terms: “[T]he inherent jurisdiction of the court may be defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so and in particular … to do justice between the parties and to secure a fair trial between them.”

[14] The motion judge had a residual authority to receive the unsworn material because there is no law, regulation or rule of procedure that specifically prohibited the motion judge from doing that. While Rule 39.01 of the Rules of Civil Procedure provides that evidence on an application may be given by way of affidavit, Rule 2.01(1) provides that a failure to comply with the Rules is an irregularity and does not render a document, among other things, a nullity. Rule 2.01(1)(a) also provides that the court may grant all necessary “amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute.” Finally, Rule 1.04(1) provides that the Rules are to be liberally construed to secure “the just, most expeditious and least expensive determination of every civil proceeding on its merits.” Far from depriving the motion judge of the authority to do what he did, the Rules reinforce His Honour’s power to ensure that matters are fairly considered on their merits.

[15] The motion judge was not obliged to ignore the unsworn material. Accordingly, His Honour’s decision to receive it cannot amount to a breach of the “appearance and reality of judicial neutrality” or lead to a conclusion that His Honour “failed to fairly balance the issues.”

[16] At paragraph 53 (b) the applicant seems to be complaining about the motion judge's decision on December 6, 2016 to grant a further adjournment. However, the applicant states in paragraph 4 of its factum that it seeks leave to appeal the motion judge's order of December 29, 2016 rather than the order of December 6, 2016. In any event, even though His Honour had previously stated that the December 6, 2016 date was peremptory upon Mr. Al-Masri, the court still retained jurisdiction to adjourn the matter on that date and its decision to do so cannot lead to a conclusion that the order of that date is somehow incorrect.

[17] His Honour could have adjourned the application again. Alternatively, His Honour could have dealt with the application and ignored the unsworn material. Finally, His Honour could have done what he did. Even if I thought His Honour was wrong to do what he did, which I do not, the order complained of resulted from a case-specific exercise of discretion and therefore is not capable of having an importance beyond the interests of the immediate parties.

[18] Accordingly, this motion is dismissed. There will be no costs.

MARROCCO A.C.J.S.C. Date: 20170510