The Divisional Court strongly criticized another judge of the Superior Court, Mr. Justice James H. Clarke, for having dismissed a motion for leave to appeal in the following words: “Leave to appeal denied. Costs reserved to trial judge.”
In MCAP Service Corporation v. McLaren, the plaintiff MCAP had moved for partial summary judgment before Madam Justice Kendra D. Coats. Her Honour dismissed the motion (in reasons which can be found here). MCAP sought leave to appeal and its motion was heard by Justice Clarke on April 16, 2007. His Honour reserved his decision.
Almost six months later, MCAP’s counsel made inquiries of the court office and was advised that the case was still on reserve. The next day, the parties received a fax containing Justice Clarke’s brief endorsement, set out above, dismissing the motion.
The Divisional Court panel, composed of Justices Lee Ferrier, Peter Cumming and Joan Lax, was quite critical of Justice Clarke’s approach, saying:
[T]he failure to give reasons and the circumstances of this case, give rise to a real concern that Clarke J. failed to deal with the motion for leave on its merits. This is unacceptable.
Indeed, the effect is that Clarke J. declined jurisdiction.
Accordingly, the court directed that the motion for leave to appeal be reheard before another judge.