2017 ONSC 1163, 2017 ONSC 1163

CITATION : One Street Digital Inc. v. Berkeley Payment Solutions Inc., 2017 ONSC 1163 COURT FILE NO.: 525/16 DATE: 20170223 SUPERIOR COURT OF JUSTICE – ONTARIO RE: One Street Digital Inc. , Plaintiff/Moving Party AND: Berkeley Payment Solutions Inc., Defendant/Responding Party BEFORE: Kiteley J. COUNSEL: Joy Casey, for the Plaintiff/Moving Party Kevin W. Fisher, for the Defendant/Responding Party HEARD: In writing ENDORSEMENT Introduction [ 1 ] The Plaintiff seeks leave to appeal from the order of Dow J. dated October 20, 2016 [1] . [ 2 ] The plaintiff is in the business of software development and consulting.

The defendant is in the business of processing payments for pre-paid credit cards by financial institutions. The parties signed a Master Agreement in 2011 and an amendment in 2012. In the statement of claim issued in June 2016, the plaintiff sought to enforce the contract and brought the motion for partial

summary judgment referred to in paragraph 1 of the reasons for decision. The motion was dismissed. Test for 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 the test to be met is a very strict one. [ 4 ] Counsel relies on rule 62.02(4)(

a) and (b). Analysis [ 5 ] In the brief reasons for decision the motion judge referred to extracts from the Master Agreement and the amendment that related to the identification of the intellectual property over which the plaintiff sought a declaration and a restraining order. He noted at paragraph 7 that the defendant took the position that the plaintiff had “failed to tender evidence of the exact nature of its product”.

At paragraph 11 he held that “the failure to tender evidence to precisely identify the property OSD seeks to have a declaration of ownership granted and stop its ongoing use results in the relief sought not being available.” And at paragraph 14 he concluded that “in the absence of clear evidence presented by OSD of what the exact non-copyrighted foundation platform program is that it seeks to be declared owner of and stop BPS from using, this motion must be dismissed and is better dealt with in combination with the issues remaining for trial”. [ 6 ] Having read the pleadings and the affidavits filed in support of the motion and in opposition, it is apparent that the issue of the description of the claimed property was key to the plaintiff securing any aspect of the motion.

The motion judge concluded that the plaintiff had failed to meet the burden of proof on that key issue. [ 7 ] In submissions under rule 62.02(4)(

a) counsel for the moving party takes the position that the decision of the motion judge is in conflict with the decision in Belzberg Technologies v. ITG Canada . [2] I agree with counsel for the defendant that this is merely a situation in which a different result was reached in respect of particular facts, not a conflicting decision on a matter of principle [3] . I need not address the second conjunctive aspect of the test but on the factum submitted by counsel for the plaintiff, it is difficult to distinguish what it is. [ 8 ] In submissions under rule 62.02(4)(

b) counsel takes the position that there is good reason to doubt the correctness of the order in these respects: the test to be applied on a motion for partial

summary judgment which involves the

interpretation of a written agreement; the motion judge did not articulate the test applicable to a motion for

summary judgment or explain why he was unable to interpret the terms of the written agreement between the parties; the motion judge erred in applying the test for an interlocutory injunction when the plaintiff sought a permanent injunction. [ 9 ] I am not persuaded that there is any reason to doubt the correctness of the order in respect of the test to be applied where the issue is the

interpretation of a written agreement. I agree that the motion judge did not articulate the test to be applied to a rule 20 motion for

summary judgment. However, judges are presumed to know the law and, in the case of rule 20, the test is so well known that it need not be articulated in every case. The motion judge did not say why he was unable to interpret the terms of the written agreement but it

was clear that the stumbling block was the failure on the part of the plaintiff to tender evidence of the property sought to be protected. It does appear in paragraphs 12 and 13 that the motion judge applied the test for an interlocutory injunction.

However, in paragraph 12 he introduced the subject as reinforcement of the decision he had made in paragraph 11 and by referencing it in the context of the submission by the defendant that the relief sought by the plaintiff was “comparable” to the three part test in RJR-Macdonald Inc . [4] [ 10 ] In any event, the test is conjunctive and I am not persuaded that the moving party has demonstrated matters of importance that go beyond the interests of the immediate parties.

There is no question of general or public importance relevant to the development of the law and administration of justice. [5] [ 11 ] Counsel for the moving party suggests costs of $2,000 to $2,500 while counsel for the responding party asks for costs on a substantial indemnity basis ($11,854) or partial indemnity basis ($8,115) and submits that $10,000 would be appropriate. There is no basis to award substantial indemnity costs. The motion for leave to appeal was largely a re-iteration of submissions made on the motion for

summary judgment but in the context of rule 62.02(4)(

a) and (b). A modest costs order is appropriate taking into consideration that counsel are not required to attend on a motion for leave. ORDER TO GO AS FOLLOWS : [ 12 ] The motion for leave to appeal is dismissed. [ 13 ] Plaintiff shall pay costs fixed in the amount of $3,500. Kiteley J. Date: February 23, 2017