Court File and Parties

Court File No.: DC 524/16 Date: 2017-01-20 Superior Court of Justice - Ontario

Re: Central-Epicure Food Products Ltd, Plaintiff/Responding Party And: Elaine Weinberg, Foodfest International 2000 Inc., Henry Ender and Sue Ellen Ender, Defendants

Before: H. Sachs J.

Counsel: Krista Chaytor, Lia Boritz, Counsel, for the Defendants, Foodfest International 2000 Inc., Henry Ender and Sue Ellen Ender, Moving Parties Shawn Tock, Counsel, for the Defendant, Elaine Weinberg Marco Drudi, Counsel for the Plaintiff, Responding Party

Heard: In writing

Endorsement

[1] This is a motion by the Defendants, Foodfest, Henry Ender and Sue Ellen Ender (the “Moving Parties”) for leave to appeal from the decision of Belobaba J. dated October 17, 2016, dismissing the Moving Parties’ motion for summary judgment. Counsel for the Defendant Weinberg advised that his client was taking no position on the motion, which was opposed by the Plaintiff.

[2] The Plaintiff commenced a claim against the Defendant Weinberg on December 20, 2011, alleging that she had made a defamatory phone call to one of the Plaintiff’s customers on October 5, 2011.

[3] One the Plaintiff’s competitors is the Defendant, Foodfest. The Defendant, Henry Ender, is an officer, director, shareholder and/or the controlling mind of Foodfest. The Defendant, Sue Ellen Ender is the ex-spouse of Henry Ender.

[4] On April 29, 2015 the Plaintiff served a motion record along with a Fresh As Amended Statement of Claim containing new allegations that all the Defendants were involved in a conspiracy to defame the Plaintiff. In its motion, the Plaintiff sought to add the Moving Parties as defendants to the claim.

[5] The motion to add the Moving Parties was heard by Master Muir on August 27, 2015. The Moving Parties opposed the motion on the basis that the claim against them was brought outside the limitation period. On September 4, 2015, Master Muir granted the Plaintiff’s motion to amend the Statement of Claim and to add the Moving Parties as defendants. He also granted the Moving Parties leave to plead a limitations defence.

[6] The Moving Parties then brought a motion before the motion judge for summary judgment dismissing the Plaintiff’s claim as against them on the basis that those claims were statute-barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. That motion was heard and dismissed on October 17, 2016. It is that motion that is the subject of the request for leave to appeal.

[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.” 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 ONSC 7405, 7 O.R. (3d) 542 (Div. Ct.).

[9] 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.).

[10] The Moving Parties submit that there are three issues raised by the motion judge for which there are conflicting decisions and which give good reason to doubt the correctness of his order:

(a) The motion judge applied the wrong test for summary judgment; (b) The motion judge erred in holding that the issue of discoverability can only be determined by a trial judge; and (c) The motion judge did not apply the right test to the consideration of whether the Plaintiff had sufficient information to bring the claim before April of 2013.

[11] I disagree. The motion judge found that “Discoverability of the recently added conspiracy claims is a genuine issue that requires a trial and, in the interests of justice, should not be decided summarily.” This finding makes it clear that the motion judge was aware of and applied the correct test for summary judgment.

[12] By adopting a portion of the reasons of Master Muir, the motion judge was not applying the wrong test. Rather, after conducting his own examination of the evidentiary record before him he accepted the Master’s conclusion that it was “far from clear that the Plaintiff had sufficient information to bring the proposed claim at any point before December, 2014”. On the summary judgment motion the burden was on the Moving Parties to establish that the claim against them should be dismissed because the limitation period had expired. If the evidence before him was “far from clear” that this was the case, it follows that the motion judge was correct to find that this was a genuine issue for trial.

[13] Even if there was a reason to doubt the correctness of the motion judge’s decision or to find that it conflicts with other decisions on this issue, the Moving Parties have failed to satisfy the second part of either part of the test for granting leave. In the end, the motion judge’s decision is based upon a conclusion that he reached after a fact specific inquiry. It did not decide any question of principle or law that the Divisional Court needs to resolve. The issues raised do not transcend the interests of the parties. With respect to those interests, the Moving Parties will still have an opportunity at trial to raise the limitation period defence.

[14] For these reasons the motion for leave to appeal is dismissed. The Plaintiff, as the successful party, seeks its costs of the motion, fixed in the amount of $6,147.20, all inclusive. Given the nature of the motion and the complexity of the issues (not particularly complex), I find that a more appropriate amount to award for costs is $5,000.00, all inclusive. This is about one half of the amount that the Moving Parties were claiming for costs.

Sachs J. Date: January 20, 2017