2017 ONSC 1667, 2017 ONSC 1667

CITATION: Apollo Real Estate Limited v. Streambank Funding Inc., 2017 ONSC 1667 DIVISIONAL COURT FILE NO.: 625/16 DATE: 20170314 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: APOLLO REAL ESTATE LIMITED v. STREAMBANK FUNDING INC. O/A THE EQUITY CENTRE, GARYCULLEN and IRWIN BELITSKY BEFORE: NORDHEIMER J. COUNSEL: William Malamas, in person, for the moving party/plaintiff[1] A.

MacKay, for theresponding party/defendant, Gary Cullen HEARD at Toronto: written submissions E N D O R S E M E N T [1] The plaintiff seeks leave to appeal from the decision of McEwen J. dated December 12, 2016, in which the motion judge setaside a default judgment that had been granted by Cameron J. on December 22, 2003. [2] In order to obtain leave to appeal, a moving party must satisfy one of the two tests set out in r. 62.02(4) of the Rules of CivilProcedure, R.R.O. 1990, Reg. 194, that reads: 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 proposedappeal 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 theproposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted. The plaintiff relies only on the second test, that is, good reason to doubt the correctness of the order and the proposed appeal involvesmatters of importance. [3] The basis upon which the plaintiff contends that there is good reason to doubt the correctness of the decision below is thatthere is exists, on the record, a reasonable apprehension of bias on behalf of the motion judge.

I see no merit in that contention. First,there is no evidence that Mr. Malamas raised this issue before the motion judge. It is generally unfair for a party to advance a claim ofbias, on an appeal, when the party has not raised that issue before the decision maker, who is alleged to be biased, and provided anopportunity for the decision maker to respond. [2] Second, there is no evidence that would begin to satisfy the test for a finding of a reasonable apprehension of bias. That test iswell recognized. It is set out in Committee for Justice and Liberty v.

Canada (National Energy Board), (SCC), [1978] 1S.C.R. 369 where de Grandpré J. said, at p. 394:

In the words of the Court of Appeal, that test is “what would a informed person, viewing the matter realistically andpractically--and having thought the matter through--conclude. Would he think that it is more likely than not that Mr. Crowe, whetherconsciously or unconsciously, would not decide fairly. [4] In order to make a finding of bias, the grounds alleging bias must be substantial and there must be cogent evidence tosupport them in order to rebut the strong presumption of impartiality: Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA793; Yukon Francophone School Board, Education Area #23 v.

Yukon (Attorney General) 2015 SCC 25. In this case, that threshold hasclearly not been met. [5] Further, and in any event, the issue of whether the default judgment should have been set aside does not raise an issue ofsuch importance that, in my opinion, leave to appeal should be granted. While the issue might be of some importance to the parties, thatis not what the test requires: Greslik v. Ontario Legal Aid Plan (1988), (ON SC), 65 O.R. (2d) 110 (Div. Ct.). Rather,the plaintiff must show that the issue is of general importance, either to the public or to the law generally.

The plaintiff has failed tomake that showing. [6] The motion for leave to appeal is dismissed. [7] The defendant, Gary Cullen, sought costs of the motion on a substantial indemnity basis based on the fact that an allegationof bias was made by the plaintiff. In these particular circumstances, I am not satisfied that that factor alone warrants an award costs onthe substantial indemnity scale. Rather, the normal partial indemnity scale should apply.

In light of the costs submissions filed, I fix thecosts of the motion at $7,500.00, inclusive of disbursements and HST, payable by the plaintiff to the defendant, Gary Cullen, withinthirty days. NORDHEIMER J. DATE: March 14, 2017