2010 ONSC 6353, 2010 ONSC 6353

CITATION : New Tecumseth, Town v. Weatherall, 2010 ONSC 6353 BARRIE COURT FILE NO.: 09-1578 DATE: 20101119 SUPERIOR COURT OF JUSTICE - ONTARIO RE: THE CORPORATION OF THE TOWN OF NEW TECUMSETH, Applicant AND: DOUGLAS HAROLD WEATHERALL, JUDITH MARIE BRANCATELLA and CABLEBRIDGE ENTERPRISE LTD. and WEATHERALL’S CAMP WILDERNESS INC., Respondents BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN COUNSEL: M.F. Cooper, Counsel, for the Respondents Weatherall, Brancatella & Weatherall’s Camp Wilderness Inc. J.J. Feehely, Counsel, for the Applicant, the Corporation of the Town of New Tecumseth E. M.

Green, Counsel for Cablebridge Enterprises Ltd. HEARD: September 28, 2010 ENDORSEMENT [ 1 ] Douglas Harold Weatherall and Judith Marie Brancatella (“Weatherall”) as respondents bring a motion seeking leave to appeal the interlocutory order of DiTomaso J. dated August 3, 2010. BACKGROUND FACTS [ 2 ] The background facts are set out in considerable detail in the decision of the motions judge. However a brief overview will provide context for this leave application. The Town of New Tecumseth (“the Town”) is the registered owner of an unopened road allowance within its boundary.

The respondents Weatherall and Cablebridge Enterprises Ltd. (“Cablebridge”) own lands that abut this unopened road allowance. In addition Weatherall operates a campground and a number of trailer homes encroach into the unopened road allowance. The Town, Weatherall and Cablebridge were unable to agree on the disposition of the unopened road allowance. As a result the Town brought an application and Weatherall brought a counter-application. [ 3 ] The motion dealt with three distinct issues.

The first issue was whether or not Cablebridge ought to be granted leave to intervene as an added party to the Weatherall application. Leave was granted and that aspect of his ruling has not been appealed. [ 4 ] The second issue determined on the motion was whether or not Cablebridge was entitled to an order consolidating the Weatherall application and the Town application.

An order consolidating the two actions was granted and that decision has not been appealed. [ 5 ] The third issue the motions judge dealt with was whether or not certain paragraphs of the Weatherall affidavit, filed in support of Weatherall’s application, be struck. It was ordered that portions of paragraph 20, 25 and 26 be struck. Weatherall seeks leave to appeal this aspect of the ruling. [ 6 ] A motion for leave to appeal an interlocutory order engages a consideration of rule 62.02 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194 (“the Rules”).

The grounds upon which leave may be granted are set out in sub- rule 62.02(4) : Leave to appeal shall not be granted unless, (

a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or (

b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted. [ 7 ] The purpose of the rule is not to retry the issue on the leave application but rather to determine if there is a conflicting decision by another court and if it is desirable that leave be granted under clause (

a) or, under clause (b), if there is a reason to doubt the correctness of the order and the appeal involves matters of importance. [ 8 ] Before making his ruling, the motions judge reviewed the paragraphs of the Weatherall affidavit within the context of rule

25.11 of the Rules of Civil Procedure . That rule provides as follows: 25.11 - The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document, (

a) may prejudice or delay the fair trial of the action; (

b) is scandalous, frivolous or vexatious; or (

c) is an abuse of the process of the court. THE PARAGRAPHS EXAMINED [ 9 ] The motions judge examined portions of three paragraphs in the Weatherall affidavit. It is not necessary to quote those paragraphs here, because they are fully contained within his reasons for judgment. However it is important to briefly examine his ruling with respect to each of the paragraphs and the ruling’s relation to rule 25.11 . PARAGRAPH 20 [ 10 ] The motions judge struck out the first two sentences of paragraph 20 after finding that they related to a settlement proposal contained within a privileged document.

He found that such a communication in furtherance of a settlement was inadmissible in evidence and should be struck at this stage of the proceedings. PARAGRAPH 25 [ 11 ] The motions judge struck out sentences two and three from paragraph 25 finding that they were scandalous and would only serve to prejudice Cablebridge. Based on the record before him he determined: The record discloses that these impugned sentences are in fact scandalous and irrelevant but more importantly, are not true. PARAGRAPH 26 [ 12 ] The motions judge struck out paragraph 26 in its entirety.

The paragraph in question raised an issue of bias or an appearance of bias in favour of Cablebridge with respect to the Town. On the material before him it was acknowledged that the Weatherall group was no longer pursuing this issue because Weatherall agreed to withdraw its request that the solicitors for the Town should be removed based on bias or an appearance of bias. In his ruling, he stated: This allegation no longer has a place in the affidavit given the fact that there no longer is an issue as to whether Feehely firm should be removed as solicitors of record.

POSITION OF THE PARTIES The Weatherall Position [ 13 ] It is the position of Weatherall that this motion meets the test for granting leave under Rule 62.02 , on the basis that there are conflicting authorities on whether or not a judge on an interlocutory motion can make a decision about the admissibility of affidavit evidence to be relied on a later stage of the proceeding. It submits that this is a function for the judicial officer hearing the merits of the matter and not for a motions judge on an interim motion. To allow motions judges to make such decisions would fragment proceedings and encourage delay.

Weatherall submits that there are conflicting authorities on this point and the matter warrants this court’s determination that leave ought to be granted. Weatherall also argues that there is good reason to doubt the correctness of the decision and that the matter is of such public importance that appellate review is desirable under the circumstances.

Position of Cablebridge [ 14 ] Cablebridge submits that the test for granting leave to appeal in circumstances such as this is a very heavy one and under a close reading of rule 62.02(4) Weatherall has failed to establish any basis for the granting of leave to appeal. Cablebridge submits that the basis of the motion judge’s decision was not irrelevancy but rather that the impugned paragraphs were scandalous and embarrassing, in addition to being irrelevant.

Position of the Town [15] The Town adopts the similar position to Cablebridge in opposing this leave motion. The Town acknowledges that a numberof cases have found that affidavit evidence should be assessed by the judge hearing the motion and should not be struck on aninterlocutory motion. But it submits that other cases appear to stand for the proposition that affidavit evidence, in some circumstances,can be struck in advance of the motion.

The Town argues that with respect to the affidavit evidence here: It is settled law that affidavit evidence should be struck on a preliminary motion where it would be inappropriate for the impugnedmaterial to come to the attention of the judge hearing the motion. [16] With respect to paragraph 26, the allegation of bias that Weatherall withdrew, the Town further submits: It is prejudicial to remit evidence that the Town’s solicitor, and by extension his client, is biased or in a position of conflict after counselhas withdrawn his claim of conflict and agreed that the Town’s solicitor ought to continue to be counsel of record. [17] The Town further submits that the decision of the motions judge fell within his discretion and that the matter was not of suchpublic importance as to require appellate review.

ANALYSIS [18] It is clear that the test for granting leave to appeal to the Divisional Court from an interlocutory order is an onerous one: Bell Expressvu Limited Partnership v. Morgan (2008), (ON SCDC), 67 C.P.C. (6th) 263 at para. 1 (Ont.SCJ – DivCt.). Itis also clear that it is not the role of motion judges to sift through affidavits as to what is admissible or relevant, in advance of an actualhearing before another judicial officer. As Dambrot J. stated in 876502 Ontario Inc. v. I.F.

Propco Holdings (Ontario) 10 Ltd. (1997), (ON SC), 37 O.R. (3d) 70 at para. 18: It is apparent, to me at least, that the rule does not contemplate that a Master should review in advance affidavits filed on a motion whichwill be argued later before an undermined Master or Judge, and make evidentiary rulings on admissibility or relevance. Our systemordinarily reserves that function to the judicial officer hearing the merits of the matter. I view that as desirable, for two reasons.

First,such rulings are better left to the person charged with acquiring a full understanding of the matter, who is then in best positioned tobalance the competing arguments and rule wisely.

Second, encouraging interlocutory rulings and appeals on admissibility can onlyserve to fragment proceedings and encourage delay as evidenced by this case, without appreciably assisting the ultimate decider of thematter in his or her task. [19] However, it should be noted that in Propco the motions judge was concerned with affidavit material filed on a motion forsecurity for costs under Rule 56.01 and not in the context of a Rule 62.02 motion. [20] In Anderson v. Hunking [2010] ONSC 551 Master Glustein confirmed the general rule that there is no preliminary vetting byanother court but noted an exception.

As he stated at para. 9: In a trial, a judge hears all evidence and decides if it is inadmissible, whether as hearsay, improper opinion, or irrelevant, scandalous orvexatious. There is no preliminary vetting by another court to determine relevance. In a motion or application, evidence is to be byaffidavit.

There is no distinction in principle supporting the view that on a motion or application, another court should take a preliminaryview of the evidence and decide its admissibility (except if there is a rare situation where the very disclosure of the evidence before thecourt hearing the substantive motion could result in a significant prejudice, such as disclosing privileged information or settlementdiscussions). [21] The decision on whether or not to strike portions of affidavit evidence on interlocutory application has been described as onethat falls within the court’s discretion.

As Cullity J. said in Andersen v. St.

Jude Medical Inc. (2002) (ON SC), 29 C.P.C. (5th) 234 at para. 17 (Ont.SCJ): In civil cases, the court will often be entitled to admit evidence conditionally and a decision whether to deal with questions relating toadmissibility of the contents of affidavits in advance on a motion to strike, or to defer the question to the hearing of the motion orapplication for which the evidence is tendered must, I believe, lie in the court’s discretion. [22] In its argument, Weatherall submitted that the law in Ontario is unsettled with respect to the ability of a motion’s judge on aninterlocutory hearing to make a decision about affidavit evidence to be relied on at a later stage in the proceeding.

However as DambrotJ. noted in Hester v. Canada (2008) (ON SCDC), 234 O.A.C. 184 at para. 29 (Ont.SCJ. Div. Ct.): Where the inconsistency amounts to nothing more than different judges reaching a different conclusion in similar circumstances, it is notdesirable that leave be granted on that basis.

CONCLUSIONS [ 23 ] In my view, Weatherall has failed to meet the test in Rule 62.04. The motions judge was alive to the issues and jurisdiction as established under Rule 25.11 . In a detailed and well-reasoned decision he determined that the impugned paragraphs contain privileged or scandalous and prejudicial statements and did not strike the paragraphs merely on the basis of irrelevance. I am satisfied that it was well within his discretion to strike these paragraphs.

In my view it is not desirable that leave to appeal be granted with respect to this matter. [ 24 ] I have no reason to doubt the correctness of the rulings of the motion judge. However, even if I had some lingering doubt about the correctness, I am not satisfied that this matter transcends to a level of general importance to the law beyond the importance to the parties themselves. [ 25 ] The motion for leave to appeal is dismissed.

If the parties are unable to agree as to costs then the responding party shall have 20 days to make brief written submissions not exceeding two pages together with a costs outline and the moving party will have a further ten days thereafter to respond. MULLIGAN, J. Date: November 19, 2010