Ernewein v. Honda Canada, 2017 ONSC 3727

This is a motion for leave to appeal from a motion for summary judgment and documentary productions    

Released June 16, 2017 | Full Decision [pdf]

The Defendant Honda, in writing, sought leave to appeal the Ernewein decision and on June 16, 2017 McCarthy J., dismissed the motion for leave to appeal in Ernewein v. Honda Canada Inc., 2017 ONSC 3727.

The test for leave to appeal is found in Rule 62.02(4) and is well settled. McCarthy J., at [4] indicated that in seeking leave, it is recognized that leave should not be easily granted and the test to be met is a very strict one.

Rule 62.02(4) has two branches upon which a moving party can seek leave to appeal. Branch (a) as McCarthy J., cites, indicates that the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere and that it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted. A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts.

Within branch (b) of Rule 62.02(4) the moving party must establish that there is a reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. The correctness of the Order must, as McCarthy J., indicates, be open for serious debate, citing Nazari v. OTIP/RAEO Insurance Co., 2003 CanLII 40868. McCarthy J., then indicated that the matters must go beyond the interest of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice, citing Rankin v. McLeod, Young, Weir Ltd. Et al., 1986 CanLII 2749 (ONSC).

McCarthy J., at [7] rejects the Defendant/Appellant submissions with respect to branch (a) of Rule 62.02(4). There was no “conflicting decision” as the Defendant/Appellant submitted authorities of differing outcomes, based on different facts, where the exercise of discretion results in a different outcome. McCarthy J., points out that those are not conflicting decisions of principles of law.

In considering branch (b) McCarthy J., at [8-9] indicates that the appeal does not raise matters of such importance that leave should be granted. The motion judge’s reasons did not compromise Honda’s ability to rely on the Limitations Act at trial. In not granting partial summary judgment, the motion judge found that there were issues of credibility and fact relating to discoverability for trial. The motion judge simply found that there was a genuine issue for trial. Citing Chernet v. RBC General Insurance Company, 2017 ONCA 337 McCarthy J., acknowledges the principle that if there is no extricable error of principle, a finding in that regard cannot be overturned without any palpable and overriding error.

With respect to the ‘Termination Review Document’ McCarthy J., at [10] quite briefly concludes that:

I am unable to find that the matter is of such importance that leave ought to be granted. Issues of lawyer-client and litigation privilege are routine and hardly out of the ordinary. I can see nothing novel, either in the manner in which or the basis upon which, the motion judge made his determination. The motion judge properly applied the test laid down by the Supreme Court of Canada in Pritchard v. Ontario (Human Rights Commission) 2004 SCC 31, to arrive at his conclusion that the document was prepared primarily for the senior management team as information necessary for management to carry out a disciplinary function.          

Appeal dismissed.


Plaintiff: Marc Lemieux
Defendant: G. McGinnis

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Written by

Antonio is a litigator with Lemieux Law. His practice focuses on motor vehicle accidents, accident benefits, occupiers’ liability, personal injury, long-term disability, wrongful & constructive dismissal, CPP disability, human rights, general litigation and WSIA Appeals. When Antonio is not practicing law, he enjoys playing hockey, working on cars, and visiting family in southern Italy.