On August 11, 2014, Justice Perell, sitting in the Ontario Divisional Court, released a decision in Mask v. Silvercorp Metals, Inc. addressing the test for leave to appeal an interlocutory order in a proposed class action, to the Divisional Court.  The decision shows that the bar for leave is high, and that significant deference will be shown to interlocutory decisions, regardless of whether they address novel areas of law.

In the interlocutory decision in Mask, Justice Belobaba denied a request, made by the plaintiff, to inspect various confidential business documents of the defendant, for two reasons: one, on the basis of the case law as it applies to such documentary requests; and two, on the basis of a broader policy concern about leave motions under s. 138.8 of the Ontario Securities Act.

On the motion for leave to appeal, Justice Perell first quoted the test for leave:

[7] The test for leave to appeal from an interlocutory order of a motions judge to the Divisional Court is set out in rule 62.02(4) of the Rules of Civil Procedure, which reads:

62.02(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.

The appellant had argued that either or both of the leave tests should apply.  With respect to the first test, it was argued that several decisions conflicted with that of Justice Belobaba, making leave appropriate.

Justice Perell quickly dismissed the idea that Justice Belobaba’s decision conflicted with other judgments, highlighting  the novelty of the specific question that Justice Belobaba addressed:

[26]           What Justice Belobaba decided was a matter of first instance, and thus almost by definition, there cannot be a conflicting decision to a matter of first instance. What Justice Belobaba decided was how rule 34.04 operates when the plaintiff is advancing a claim under Part XXIII.1 of the Securities Act. While there are some decisions that have considered the policy issues associated with the procedure for advancing a claim under Part XXIII.1 of the Securities Act, these decisions do not conflict with Justice Belobaba’s exploration of what is largely unmapped legal territory. The related decisions, discussed in Justice Belobaba’s judgment, compliment but do not conflict with his decision.

On the second ground for leave, Justice Perell dismissed the appellant’s two-pronged argument, that (a) the correctness of Justice Belobaba’s decision should be doubted and, (b) the appeal involves matters of general importance:

[29]           To the extent that Justice Belobaba’s decision was based on the normative case law about the production of documents it was not a matter of general importance and to the extent that his decision was based on the intersection of rule 30.04 and s. 138.8 of the Ontario Securities Act, there is no good reason to doubt the correctness of Justice Belobaba’s order…

What this judgement indicates is that a development in the law will be insufficient to prove that a given decision is one of general importance, especially where the there is no evidence that the novel issue at hand transcends the immediate interests of the parties.