In the recent Ontario Divisional Court decision in Daneluzzi v. Daneluzzi, McKelvey J. considered a motion for leave to appeal from a summary judgment decision. In a somewhat unique situation, leave to appeal was sought by both parties.
The decision offers a reminder that even where the parties mutually seek an appeal, leave to appeal will only be granted where the criteria in R. 62.02(4) are satisfied:
 Rule 62.02(4) of the Rules of Civil Procedure sets out the criteria which must be satisfied before leave is granted. The rule provides as follows:
(4) 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 proposed appeal 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 the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
In this case, the motion judge declined to grant summary judgment to the plaintiffs because they did not provide expert evidence on the duty of care owed to them. On a similar basis, the motion judge declined to heed the request of the defendants to dismiss the plaintiffs’ action.
In denying leave, McKelvey J. relied on the principles espoused by the Supreme Court of Canada in Hyrniak v. Mauldin, and held that the motion judge’s decision was fully consistent with the principles outlined in that case. While the evidentiary burden for a summary judgment motion is less onerous than for a trial, the absence of expert evidence was sufficient reason to deny the motion:
-  In the present case, neither the plaintiff nor defendant chose to introduce any evidence with respect to the standard of care. It is fair to say that the comments of the motion judge were directed towards the ability of the court to make a fair decision without the benefit of any expert opinion. The absence of any expert opinion is an omission shared by both the plaintiffs and Sandrex. The obligation on the plaintiffs was particularly important, however, as they brought the motion for summary judgment. The comments of the motion judge with respect to the interest of justice requiring expert opinion is consistent with existing caselaw and is reflected in the Supreme Court of Canada decision in Hyrniak v. Mauldin, 2014 SCC 7 (CanLII). In their decision, the Supreme Court comments that a trial is not required if a summary judgment can achieve a fair and just adjudication. The court notes,
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment.
 The court goes on to comment that on a summary judgment motion the evidence need not be equivalent to that at trial, but must be such that the judge is “confident that she can fairly resolve the dispute.”