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Articles and Publications

July 2015

An Updated Case Comment

Jung v Cloverdale Mall Inc., et al - 2015 ONSC 2386

 

Marla Kuperhause
Marla Kuperhause,
Associate

Written by Marla Kuperhause

McCague Borlack was successful in defending the various owners and operators of Cloverdale Mall, in the case of Jung v Cloverdale Mall Inc., et al. In the recent decision of Justice Harvison Young, the moving party's motion for leave to appeal the Order of Akhtar, J., was denied and further costs were awarded to MB's clients.

Factual Background

The moving party, Metro Ontario Inc. ("Metro"), sought leave to appeal the Order of the Honourable Justice Akhtar, dismissing its summary judgment motion. A dispute arose in the context of a personal injury case, as to the interpretation of an indemnification provision between the leasee, Metro, and the leasor, Cloverdale Mall Inc. ("Cloverdale Mall"). The Plaintiff allegedly slipped and fell on ice in the "common area" of the property.

Metro brought a motion for summary judgment to order Cloverdale Mall to indemnify it for the cost of litigating the personal injury claim, pursuant to the provision in the lease. Michael successfully argued that there was no such obligation on Cloverdale Mall to indemnify Metro. This was endorsed by Justice Akhtar, on April 15, 2015.

The learned judge indicated that there are two possible branches upon which leave may be granted, both of which involve a two-part test....

The Test for Granting Leave to Appeal

Justice Harvison Young presided over the current matter, and indicated in her decision that the test for granting leave to appeal is strict and not easily met. The learned judge indicated that there are two possible branches upon which leave may be granted, both of which involve a two-part test.

1. Conflicting Decisions

The first branch upon which leave may be granted requires the moving party to 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".

2. Correctness

The second branch upon which leave may be granted requires the moving party to establish that there is "good reason to doubt the correctness of the order in question", and that the proposed appeal "involves matters of such importance" that leave should be granted.

Conclusion

Justice Harvison Young sided with our position, and held that the Metro had not satisfied either branch of the test.

With respect to the first branch, the learned judge dismissed Metro's arguments since the provisions of the lease, and the indemnification provision specifically, did not provide for the compensation of Metro in the circumstances. It was also found that there was no conflicting issue of principle.

As for the second branch, Justice Harvison Young was not satisfied that the correctness of the motions judge's decision is open to "very serious debate". Since the motions judge carefully considered the terms of the lease and the particular provision upon which the dispute was founded, Metro's arguments under this branch were dismissed.

As such, the motion for leave to appeal is dismissed, and costs were awarded to MB's clients.

For the full decision see Jung v Cloverdale Mall Inc., et al - 2015 ONSC 2386.

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