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
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,
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
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
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
 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
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."
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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