2013 ONSC 7434, 2013 ONSC 7434

CITATION : Saini v. Sun Life Assurance Company of Canada, 2013 ONSC 7434 DIVISIONAL COURT FILE NO.: 404/13 DATE: 20131203 SUPERIOR COURT OF JUSTICE – ONTARIO Divisional Court RE: Gurvinder Kaur Saini, Plaintiff (Responding Party) AND: Sun Life Assurance Company of Canada, Defendant (Moving Party) BEFORE: H. Sachs J. COUNSEL: Mark Cavanaugh , for the Moving Party William G. Scott , for the Responding Party HEARD at Toronto: November 29, 2013 ENDORSEMENT [ 1 ] This is a motion by the Defendant for leave to appeal the Order of E.M.

Morgan J., dated June 28, 2013, in which he allowed the Defendant’s appeal from the order of the Master below and remitted the matter to be re-heard in accordance with the correct test applicable to status hearings. He further ordered that the Plaintiff was entitled to file additional evidence at the new hearing. [ 2 ] The Defendant submits that there is good reason to doubt the correctness of the appeal judge’s order that there be a second status hearing with the ability to file additional evidence.

According to the Defendant, the appeal judge erred when he found that there had been a change in the test applicable to status hearings; he erred when he made the order for a second hearing without getting submissions from the parties on this issue; he erred when he found that it was appropriate to have a new hearing when he had made findings that the Plaintiff had not met the first part of the test and he erred when he gave the Plaintiff the right to file new evidence without considering the test for the admission of fresh evidence.

According to the Defendant, the appeal raises issues of general importance for a number of reasons, particularly the fact that the decision offends the fundamental principle that there should be finality to litigation. [ 3 ] The decision in question was an interlocutory one concerning a procedural matter involving the exercise of discretion.

Thus, the threshold for granting leave to appeal is a high one. [ 4 ] The Defendant submits that the decision conflicts with other decisions on the points in issue and that, on appeal, the Divisional Court will have the opportunity to address the following three issues that transcend the interests of the parties: (

a) How substantial must an intervening change in the law be to justify an order to re-litigate an otherwise decided issue? (

b) Must there be evidence from the parties that they would have presented that would have materially affected the result at first instance? (

c) Does fairness require that a party should be given the opportunity to make submissions before being in the position of facing a second hearing? [ 5 ] None of the issues proposed are issues where the law is unsettled, such that it is necessary for the Divisional Court to clarify the matter. Further, the proposed appeal, while important to the parties, deals with a particular set of circumstances that are unlikely to arise again. It does not raise issues of general importance. [ 6 ] For these reasons, the motion for leave to appeal is dismissed. The parties agreed on the appropriate amount to award for costs.

For these reasons, I order the Defendant to pay to the Plaintiff her costs of this motion, fixed in the amount of $5,000.00. SACHS J. Date: 201312