General importance relates to matters relevant to development of law and administration of justice

Respondent property owner brought action against applicant municipality for declaration regarding permit. Municipality brought motion for summary judgment dismissing property owner’s claim. Motion was dismissed. Municipality brought application for leave to appeal. Leave to appeal refused. Rule 62.02(4)(a) and (b) of Rules of Civil Procedure sets out test that applies for granting leave to appeal. To satisfy court that leave to appeal should be granted, applicant need only meet one branch of rule but each branch must be read conjunctively. Under R. 62.02(4)(a), applicant first must show that there is conflicting decision by another judge in Ontario or elsewhere on matter involved in proposed appeal. Secondly, applicant must satisfy court that it is desirable that leave to appeal be granted. Judge who exercises his or her discretion when circumstances of case are different than in other jurisprudence is not necessarily making “conflicting decision”. Decision of motions judge is entitled to considerable deference. Therefore, in order to be successful on motion for leave to appeal, it is necessary for applicant to demonstrate that there is difference in principles chosen by motion judge as guide to exercise of discretion, and not simply different set of facts leading to different conclusion. Requirements of R. 62.02(4)(a) were not met. Municipality did not demonstrated that motion judge’s decision conflicted with another decision in Ontario or elsewhere, nor had it shown that it was desirable that leave to appeal be granted. Test under R. 62.02(4)(b) contains two branches. To succeed, applicant must satisfy court that there is good reason to doubt correctness of motion judge’s decision and that appeal raises matters of general importance. Test is whether decision is open to serious debate. It was well within motion judge’s discretion to rule that doctrine of res judicata did not apply or to find that action commenced by owner was not abuse of process. There was no good reason to doubt correctness of motion judge’s decision and municipality failed to show that decision was open to serious debate. For purpose of R. 62.02(4)(b), matters of importance refer to matters of general importance, not matters of particular importance relevant only to litigants. General importance relates to matters of public importance and matters relevant to development of law and administration of justice. Matters at issue were of great importance to litigants but were not matters of such general public importance that leave to appeal should have been granted.

Bodnar v. Thunder Bay (City) (2017), 2017 CarswellOnt 5144, 2017 ONSC 1724, G.P. Smith J. (Ont. S.C.J.); leave to appeal refused (2016), 2016 CarswellOnt 14896, 2016 ONSC 5894, W.D. Newton J. (Ont. S.C.J.).