2017 ONSC 2887, 2017 ONSC 2887

CITATION: Toronto Standard Condominium Corporation No. 2297 v. Ruivo, 2017 ONSC 2887 COURT FILE NO.: 015/17 DATE: 20170510 SUPERIOR COURT OF JUSTICE - ONTARIO RE: TORONTO STANDARD CONDOMINIUM CORPORATION NO. 2297, Moving Party AND: SERGIO RUIVO and AMEED AL-MASRI, Responding Parties BEFORE: MARROCCO A.C.J.S.C. COUNSEL: Jonathan H.

Fine and Dalia Yonadam, for the Moving Party Sergio Ruivo, In Person Ameed Al-Masri, In Person HEARD: In Writing LEAVE TO APPEAL ENDORSEMENT [1] The moving party seeks leave to appeal the interlocutory order of the motion judge dated December 29, 2016. [2] This motion arises out of a proceeding that commenced as an application for a range of injunctive and/or declaratory reliefbrought by the moving party against the responding parties. [3] On October 4, 2016, the motion judge granted interlocutory relief to the moving party.

The motion judge adjourned thebalance of the moving party’s application upon terms to permit Ameed Al-Masri to file responding material. Mr. Al-Masri filed asignificant volume of responding material but not in proper affidavit form. When the matter came on again before the same motion judgeon December 6, 2016, the motion judge again adjourned the matter so that Mr. Al-Masri could refile his responding material in properaffidavit form. This matter came on again before the same motion judge on December 21, 2016 and Mr.

Al-Masri attempted to file hismaterial in affidavit form but in fact had only sworn an affidavit of service. The motion judge accepted Mr. Al-Masri’s explanation thathe thought he had complied with the rules and, in the interests of justice, received Mr. Al-Masri’s material on the motion. [4] After considering the material, the motion judge decided, in an order dated December 29, 2016, to convert the applicationinto an action and order a trial because the material contained extensive factual disputes and raised numerous issues of credibility. In theinterim, the motion judge made an order prohibiting Mr.

Al-Masri from having any contact with the concierge desk at the moving party. [5] The moving party submits that the motion judge erred by relying on Mr. Al-Masri’s unsworn material and seeks leave toappeal the December 29, 2016 order. [6] Leave to appeal is denied. [7] The test for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branchesupon 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 metbefore leave may be granted. [8] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court inOntario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave toappeal be granted.” [9] A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result wasreached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), (ON SC), 7 O.R. (3d)542, 55 O.A.C. 316 (Div.

Ct.). [10] The moving party has not pointed to any decisions that conflict with respect to matters of principle, as opposed to decisions inwhich judges have exercised their discretion differently on different facts. [11] In its factum, at para. 43, the moving party says that the motion judge’s decision conflicts with various decision of Ontariocourts cited at paras. 44-52, 58-65, 68, 72 of the factum. The only one that is arguably a “conflicting decision” is Luxon v. BethesdaHome for the Mentally Handicapped Inc., 2005 CarswellOnt 71, [2005] O.J.

No. 58 (BOA, Tab 25) where Quinn J. held, at paras. 19-22,that it would be inappropriate to allow the plaintiff to lead evidence other than by affidavit in a

summary trial under Rule 76. The presentcase is distinguishable from Luxon. In this case, the motion judge relied on the responding party’s materials to conclude there werefactual disputes requiring both a trial and the conversion of the application to an action; the materials, with which we are concerned,were not used in a trial.

[12] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in questionand that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judgegranting leave be satisfied that the decision in question was actually wrong – the first part of the test is satisfied if the judge grantingleave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., (ON SC), [2003] O.T.C. 794, 3 C.C.L.I. (4th) 149 (Sup. Ct.); Ash v.

Lloyd’s Corp. (1992), 8 O.R. (3d) 282, (Gen.Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties andinvolve 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), 57 O.R. (2d) 569, (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d)110, 30 O.A.C. 53 (Div. Ct.). [13] The Superior Court of Justice has an inherent jurisdiction in civil and criminal matters. In Ontario v.

Criminal Lawyers’Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, the Supreme Court of Canada cited with approval an

article by I.H. Jacobentitled “The Inherent Jurisdiction of the Court” ((1970) 23 Curr.

Legal Probs. 23), which defined, at p. 51, the court’s inherentjurisdiction in the following terms: “[T]he inherent jurisdiction of the court may be defined as being the reserve or fund of powers, aresidual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so and in particular … to dojustice between the parties and to secure a fair trial between them.” [14] The motion judge had a residual authority to receive the unsworn material because there is no law, regulation or rule ofprocedure that specifically prohibited the motion judge from doing that.

While Rule 39.01 of the Rules of Civil Procedure provides thatevidence on an application may be given by way of affidavit, Rule 2.01(1) provides that a failure to comply with the Rules is anirregularity and does not render a document, among other things, a nullity. Rule 2.01(1)(

a) also provides that the court may grant allnecessary “amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute.” Finally,Rule 1.04(1) provides that the Rules are to be liberally construed to secure “the just, most expeditious and least expensive determinationof every civil proceeding on its merits.” Far from depriving the motion judge of the authority to do what he did, the Rules reinforce HisHonour’s power to ensure that matters are fairly considered on their merits. [15] The motion judge was not obliged to ignore the unsworn material.

Accordingly, His Honour’s decision to receive it cannotamount to a breach of the “appearance and reality of judicial neutrality” or lead to a conclusion that His Honour “failed to fairly balancethe issues.” [16] At paragraph 53 (

b) the applicant seems to be complaining about the motion judge's decision on December 6, 2016 to grant afurther adjournment. However, the applicant states in paragraph 4 of its factum that it seeks leave to appeal the motion judge's order ofDecember 29, 2016 rather than the order of December 6, 2016. In any event, even though His Honour had previously stated that theDecember 6, 2016 date was peremptory upon Mr.

Al-Masri, the court still retained jurisdiction to adjourn the matter on that date and itsdecision to do so cannot lead to a conclusion that the order of that date is somehow incorrect. [17] His Honour could have adjourned the application again. Alternatively, His Honour could have dealt with the application andignored the unsworn material. Finally, His Honour could have done what he did.

Even if I thought His Honour was wrong to do what hedid, which I do not, the order complained of resulted from a case-specific exercise of discretion and therefore is not capable of having animportance beyond the interests of the immediate parties. [18] Accordingly, this motion is dismissed. There will be no costs. MARROCCO A.C.J.S.C. Date: 20170510