Sahota v. Sahota, 2015 ONCA 2640 - required tests for leave to appeal

HEARD:        In Toronto, in writing  

(Leave to Appeal to the Divisional Court)

 MOLLOY  J:

Introduction

[1]              The defendant, Gary Roy Geller, seeks leave to appeal to the Divisional Court from the Order of Matlow J. dated February 13, 2015, dismissing Mr. Geller’s motion to enforce a settlement agreement.

[2]              The motion was argued on December 2, 2014 and dismissed by handwritten endorsement issued February 2, 2015.  The entirety of the reasons given by the motion judge  for dismissing the motion are as follows:

                        I am not persuaded that there is any agreement to which the moving party, the defendant, Geller, is a party and by which the action has been settled as against him.

The Test for Granting Leave to Appeal

[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 that 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 is satisfied 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. per Then J.); Ash v. Lloyd’s Corp. (1992), 1992 CanLII 7652 (ON SC), 8 O.R. (3d) 282 (Gen Div., per Farley J.).  In addition, the moving party must demonstrate matters of importance that go beyond the interest 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), 1986 CanLII 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J. per Catzman J.); Greslik v. Ontario Legal Aid Plan(1988), 1988 CanLII 4842 (ON SC), 65 O.R. (2d) 110 (Div.Ct.).

Ruling

[6]              Reasons for dismissing a motion, particularly one that is the equivalent of a motion for summary judgment, do not need to be lengthy.  However, they do need to perform the function of reasons.  The endorsement of the motion judge in this case provides no basis for meaningful appellate review, nor does it tell the parties the basis for the decision made.  This one sentence written by the motion judge does not constitute reasons; it is merely a bald conclusion or statement of outcome: R. v. Sheppard, 2002 SCC 6 (CanLII); Diamond Auto Collision Inc. v. Economical Insurance Group, 2007 ONCA 487 (CanLII); Banco Internacional de Comercio S.A. v. B&B Finance Ltd, 2013 ONSC 3002 (Div.Ct.).

[7]              The failure to give reasons is an error of law.  On that basis alone I have reason to doubt the correctness of the decision made by the motion judge.  I am completely unable to discern the basis for his decision from the reasons provided, nor is the basis for it obvious from the materials that were before him.  Further, this is an issue that affects the public perception of the justice system.  As stated by Epstein J. (as she then was) in Vine Hotels Inc. v. Frumcor Investments Ltd., [2003] O.J. No. 4768, “a failure to provide a reasoned decision tends to undermine confidence in the administration of justice as the absence of reasons may give the appearance of an arbitrary decision, particularly in the eyes of the unsuccessful party.”

[8]              Accordingly, I find that the test for leave to appeal under Rule 62.02(4)(b) is met and leave to appeal is hereby granted.  Costs are left to the Court hearing the appeal.

Other

[9]              That disposes of the motion before me.  However, this motion is somewhat out of the ordinary because of the complete absence of reasons and that is the basis upon which I have granted leave.  It seems to me that there are three possible dispositions on appeal: (1) the Divisional Court could dismiss the appeal; (2) the Divisional Court could grant the appeal, quash the decision of the motion judge, and remit the motion to another judge to be heard afresh; or (3) the Divisional Court could grant the appeal and substitute its own decision for that of the motion judge.   It is not for me to say which is more likely, but I do note that a panel of three judges is not always the most efficacious way to deal with a motion of this type. 

[10]           I offer the suggestion that it may be more appropriate for the parties to simply argue this motion afresh before a single motion judge of the Superior Court, thereby preserving all of the usual routes of appeal for all parties.  If the parties were to agree on this course of action, I could issue a consent order simply setting aside the decision of the motion judge dated February 13, 2015 and providing a new motion date for the argument of the motion to enforce the settlement.  I will remain seized for this limited point only, and I will proceed only if all parties agree.  If the parties are in agreement, I may be contacted through the Divisional Court office by no later than May 8, 2015.

MOLLOY  J.

Date:   April 24, 2015