DATE: 20011011 DOCKET: M27719
COURT OF APPEAL FOR ONTARIO
RE:
WILMA H. MILLS, in her personal capacity, AND WILMA H. MILLS, in her capacity as Executrix of the ESTATE OF ALICE MAUDE BLADEN, DECEASED (Plaintiffs (Appellants)) and SCARBOROUGH GENERAL HOSPITAL, HOWARD BONGARD, LEONARD PERESS, JOSEPH Z. SHAINHOUSE, MIN-KANG YANG, JOSEPH K. BUTCHEY, FRED ROSEN, JOHN DOE AND JANE DOE (Defendants (Respondents))
BEFORE:
SIMMONS J.A. (IN CHAMBERS)
COUNSEL:
Wilma H. Mills Plaintiff in person
Michael C. Smith For the respondent (defendant hospital)
Sally P. Bryant For the respondent (defendant physicians)
HEARD:
August 31, 2001
E N D O R S E M E N T
1Ms. Mills requests an order extending the time to file a notice of appeal from an order of Kiteley J. dated October 18, 1999. The issues are accordingly as follows:
(1) Did Ms. Mills form an intention to appeal within the applicable time period and maintain that intention thereafter;
(2) Has Ms. Mills adequately explained her delay in filing a notice of appeal; and
(3) Do the merits of the appeal, or the interests of justice, require that an extension be granted even if the delay has not been adequately explained.
2There is no real dispute that Ms. Mills formed the intention to appeal within the relevant period and attempted to pursue an appeal in Divisional Court. Although I do not foreclose the prospect that, in some circumstances, proceeding in the wrong court will excuse delay in filing a notice of appeal in the proper court, in this case, Ms. Mills’ motion for leave to appeal lay dormant in Divisional Court for at least one year. I am not persuaded that Ms. Mills has adequately explained that delay, nor therefore, her delay in filing a notice of appeal to this court. Further, I am not persuaded that the merits of this appeal or the ends of justice justify such a lengthy extension.
Background
3On July 13, 1999, Master Polika dismissed Ms. Mills’ action against the responding parties based on her failure to comply with an order requiring answers to undertakings. Ms. Mills did not attend the motion before Master Polika. She subsequently brought a motion pursuant to Rule 37.14 to have his order set aside, saying that she failed to attend the motion through accident or mistake. Kiteley J. dismissed her motion on October 18, 1999, and said:
… I find that the reason for Ms. Mills[’] non-attendance was neither accident nor mistake. Consequently, she has not met the threshold in R. 37.14. Motion dismissed.
4Ms. Mills applied for leave to appeal the order of Kiteley J. by motion returnable in Divisional Court on November 30, 1999. Counsel for the respondents informed her, by letters dated October 25, 1999 and November 8, 1999, that they felt her appeal should be to the Court of Appeal. Counsel for the respondent hospital informed Ms. Mills that leave was unnecessary for an appeal to the Court of Appeal. Counsel for the personal respondents also informed Ms. Mills that she would seek instructions to bring a motion to have the appeals from Kiteley J. and the Master Polika consolidated and heard together in the Court of Appeal if Ms. Mills insisted on proceeding with the leave motion to Divisional Court.
5Ms. Mills responded as follows by letter dated November 29, 1999:
Please be advised that the Superior Court of Justice (Divisional Court) have today adjourned the Notice Of Motion For Leave To Appeal to January 19, 2000, in order for the Appeal to be dealt with in the proper Court (Court of Appeal) as indicated by both you that the Order of Madam Justice Kiteley is a “Final Order” and should be filed with the Court of Appeal.
Hoping that you will pay special attention to this hurried note. Thank you very kindly for your prompt attention.
6On January 6, 2000, counsel for the respondent hospital wrote to Ms. Mills concerning the January 19, 2000 motion:
I agreed to your request for an adjournment of your motion for leave to appeal Justice Kitel[e]y’s Order from November 30, 1999 to January 19, 2000 so that you could satisfy yourself that your appeal of Justice Kitel[e]y’s Order was properly brought to the Court of Appeal. I have heard nothing from you since November 29, 1999. What do you intend to do with respect to the motion for leave to appeal justice Kitel[e]y’s Order which you currently have pending on January 19, 2000?
7Although counsel attended Divisional Court and the Court of Appeal on January 19, 2000, Ms. Mills apparently did not. Counsel for the personal respondents wrote to Ms. Mills on January 20, 2000 as follows:
Mr. Smith, counsel for the hospital and I attended at both 393 University Avenue and 130 Queen Street West this morning with respect to your pending motion in the Divisional Court for an appeal of Madam Justice Kitel[e]y’s Order of October 18, 1999. Pursuant to your letter of November 29, 1999, Mr. Smith and I both understood that this motion, which had been returnable on November 30, 1999, was adjourned on consent to January 19, 2000. Mr. Smith had written to you on January 6, 2000 to inquire as to your intentions with respect to this motion. Mr. Smith advises that he received no reply to his letter. I attempted unsuccessfully to contact you by telephone on both January 14 and January 18, 2000, in order to determine your intentions with respect to this motion.
Based on the foregoing, please be advised that I am of the view that your motion for leave to appeal Madam Justice Kitel[e]y’s Order has been abandoned.
Counsel for the respondent hospital also wrote to Ms. Mills on January 20, 2000. He noted that Ms. Mills had not attended the leave motion scheduled for January 19, 2000. Both counsel stated they would be seeking costs of their attendance.
8Ms. Mills wrote to counsel on February 8, 2000 and requested that they approve a draft copy of an order of Kiteley J., which she enclosed. Counsel for the respondent hospital wrote to Ms. Mills on February 10, 2000 as follows:
… I do not understand why you have sent another draft Order concerning your motion before Justice Kitel[e]y. You picked up an Order which I drafted with respect to this motion from my office October 20, 1999. You have never returned this Order approved as to form and content despite my requests that you do so. The Order which I prepared is in the proper form and reflects Justice Kitel[e]y’s Order. Please approve it as to form and content and return it to me.
Further, as you have now abandoned your appeal of Justice Kitel[e]y’s Order, please pay the costs awarded by Justice Kitel[e]y …
9Counsel for the personal respondents wrote to Ms. Mills on February 16, 2000 expressing her confusion about the draft order, and saying she had already approved the copy drafted by counsel for the respondent hospital. She also requested payment of the costs awarded by Kiteley J.
10Counsel for the personal respondents says Ms. Mills approached her on February 28, 2001 concerning the status of the order of Kiteley J. She says she referred Ms. Mills to counsel for the respondent hospital. Ms. Mills attended at his office on March 1, 2001 and obtained copies of certain endorsements and orders.
11On March 2, 2001 Ms. Mills re-served motion materials for the motion seeking leave to appeal Kiteley J.’s order returnable November 30, 1999. Counsel for the respondent hospital wrote to Ms. Mills on March 5, 2001 expressing confusion over the return date. Ms. Mills subsequently served a revised Notice of Motion returnable April 27, 2001 in Divisional Court.
12The leave motion to Divisional court was eventually dealt with on August 15, 2001. Winkler J. endorsed the motion record as follows:
This is in the wrong court – it is a final order and an appeal lies to the Court of Appeal.
13In a supplementary affidavit filed in court on August 31, 2001, Ms. Mills asserted that the Divisional Court leave motion was originally scheduled for November 19, 1999, but was rescheduled for a hearing on April 23, 2000. She says the leave motion was subsequently adjourned to June 18, 2001, because she was in hospital on April 23, 2000, and to August 15, 2001, because she was still recuperating on June 18, 2001. Ms. Mills also deposed:
The Divisional Court accepted my Notice of Motion for Leave to Appeal within the time required for it to be filed with the court and subsequently scheduled for a hearing.
I have always genuinely believed I was in the right court until advised otherwise on August 15, 2001.
I filed the Notice of Motion that this affidavit supports on August 25, 2001. The solicitors for the opposing parties were served on the 20th and 21st of August, 2001 only five or six days after the August 15, 2001 decision was made and I became aware for the first time that I was in the wrong court.
14In oral submissions Ms. Mills acknowledged her letter to opposing counsel dated November 29, 1999 but said the subsequent delay was because opposing counsel failed to take steps to transfer the matter from Divisional Court to the Court of Appeal as discussed. She disputed counsel’s reliance on her advice that the leave motion had been adjourned to January 19, 2000 as a proper basis for them attending court that day. She said counsel should have known the motion could not proceed on January 19, 2000 because she had not delivered a motion record.
15In a further supplementary affidavit filed after the decision in this matter was reserved, Ms. Mills deposed as follows:
… it should be noted that the Defendants did not take any steps whatever to consolidate the appeal of the Kitel[e]y order with another appeal of the Polika orders. Despite the fact that I agreed to adjourn the motion for leave to appeal the Order of Kiteley, J. scheduled to be heard on November 30th, 1999, to January 19th, 2000, specifically for the purpose of permitting the Defendants to bring a motion consolidating the appeals, they failed to do so. Attached hereto and marked as Exhibit “F” are true copies of two letters dated November 29, 1999, one addressed to the Solicitors for the Defendants and one to the Assistant Registrar, of the Divisional Court.
With respect to the service of the Notice of Leave to appeal of Kiteley’s order on the defendants, was filed on November 5th. The service and the relief I was seeking was being pursued in good faith and not for the purpose of delay[.] In fact, I had telephoned [counsel] advising them that the reason why I was continuing with my Motion for Leave to Appeal was because I was advised by a counsel whose name I was able to obtain through the Law Society Referral Service and who was certified to be an expert in such matters, … that the Order of Kiteley was an interlocutory order. …
In late October, 1999, I again had telephone contact with [counsel]. In these conversations, I clearly expressed my understanding that the order of Madam Justice Kiteley was an interlocutory order … I further advised them during the telephone conversations that since the Polika order was in the Divisional Court on appeal I would leave Madam Kiteley’s order in the Divisional Court to be heard with Polika’s appeal, when the date was set by the Registrar of the Divisional Court so that both the appeal of Polika and the leave to appeal from Kiteley’s order could be heard together.
The suggestion by [counsel] that I abandoned my motion is a convenient argument for her to make. In fact, I was waiting at all times for the Defendants to bring their motion to consolidate the two appeals. As I had received legal advice contrary to their position, there was no basis for me to consent to their motion. At no time did they abandon their position that the two proceedings be consolidated and in fact I had absolutely no indication from either of them that they were not intending to pursue an order of consolidation as they clearly thought was appropriate, especially in light of the circumstances outlined in my letter of November 29, 1999.
It is true that I received a letter dated February 16, 2000 requesting payment of costs awarded by Madam Justice Kiteley …
Attached hereto and marked as Exhibit “I” is a true copy of a Notice of Intention to Dismiss my motion for leave to appeal for delay. I received this document dated February 13, 2001 shortly after its date. I immediately proceeded to perfect my motion for leave to appeal. …
16The letter addressed to the Divisional Court dated November 29, 1999, which is annexed as part of exhibit “F” to Ms. Mills’ affidavit, provides, in part, as follows:
Further to my request for an adjournment I would like to draw your attention to the matter that:
Both Defendant solicitors have indicated that they intend to bring a Motion before a Judge to have the Notice of Motion for Leave to Appeal on January 19, 2000, to decide which court has jurisdiction to hear this appeal as it is not clear whether or not Madam Justice Kiteley’s Endorsement/Order made on October 18, 1999 is:
a. An Interlocutory Order
b. A Final Order of A Judge
I have consulted with a lawyer who is of the opinion that the above captioned endorsement/order is an Interlocutory Order …
I have taken the Endorsement made by Madam Justice Kiteley to the Court of Appeal for Ontario and was told it does not belong there and in their view it lies within the jurisdiction of the Superior Court of Justice (Divisional Court).
The Defendant Solicitors … are of the opinion that the Order of Madam Justice Kiteley is a Final Order and a Notice of Appeal should be brought before the Ontario Court of Appeal, therefore, it is not necessary to bring a Notice of Motion For Leave To Appeal, in the Divisional Court.
17Ms. Mills asserts that the merits of her case have never been addressed. She says she failed to attend before Master Polika because she was in another court dealing with a personal injury case and the presiding judge refused to release her to attend. She claimed she was not served with a motion record, but was notified of the motion by way of a letter received a few days before the motion. She points out that Kiteley J. acknowledged that she did not have the materials that were before Master Polika before her. She also submits that she was not allowed to reply to the submissions made by the responding parties and was not given the time she requested to present her motion.
Decision
18The foregoing chronology indicates Ms. Mills’ leave motion lay dormant in Divisional Court between at least January 19, 2000 and March 2, 2001. Ms. Mills seeks to explain this delay on two bases. First, she adjourned her leave motion to accommodate the respondents’ desire to bring a motion transferring both of her proposed appeals to the Court of Appeal and the respondents failed to proceed with their motion. Second, she always believed this appeal was properly in the Divisional Court, and was content that the leave motion be heard with the appeal of Master Polika’s order.
19The basis for adjourning the leave motion from November 30, 1999 to January 19, 2000 is disputed. Whatever the original reason, Ms. Mills’ assertion that she was waiting for the respondents to bring a motion to clarify the appeal route, before proceeding with her leave motion, is contradicted by correspondence from opposing counsel indicating they were treating her leave motion as abandoned. Although Ms. Mills asserts that counsel did not abandon their position that the two pending appeals should be consolidated, she does not deny receiving their letters saying they would treat the leave motion as abandoned. Ms. Mills specifically acknowledges receipt of counsel’s letter dated February 16, 2000. It refers to the February 10, 2000 letter, which, in turn, refers to the position that the leave motion had been abandoned.
20There is no reason to believe Ms. Mills did not receive the correspondence setting out counsel’s position that she had abandoned her leave motion. However, even if Ms. Mills had not received it, she could have discovered its existence through reasonable inquiry arising from the other correspondence she received.
21Whatever assumptions existed prior to January 19, 2000, Ms. Mills knew, in early February 2000, that opposing counsel felt there was a problem, both with the appeal route she had chosen and with the status of her leave motion. Ms. Mills was not, of course, required to accept counsel’s position. However, to the extent Ms. Mills failed to expeditiously resolve the correct appeal route, it is she who is responsible for any delay.
22Once placed on notice respondents’ counsel were treating her leave motion as abandoned, Ms. Mills could not rely on an expectation that they were going to bring a motion, as an explanation for her failure to act. Similarly, once informed that respondents’ counsel believed she had chosen the wrong appeal route, Ms. Mills could not rely on a belief that she was correct, to explain her failure to proceed as quickly as possible with her leave motion.
23Even assuming Ms. Mills initially thought counsel were going to bring a motion, she ought to have taken steps sooner than she did, when that did not transpire. Ms. Mills is ultimately responsible for choosing to appeal to the Divisional Court in the first instance. She also bears the onus of explaining any delay in filing a notice of appeal to this court. Ultimately, it was up to Ms. Mills to ensure the leave motion was not unduly delayed. Accordingly, I find Ms. Mills’ has not adequately explained her delay in filing a notice of appeal to this court.
24As for the merits of the proposed appeal, I note that there were conflicting affidavits before Kiteley J. concerning Ms. Mills’ efforts to have the personal injury case she was attending briefly adjourned so she could attend before Master Polika. The onus was on Ms. Mills to demonstrate the likelihood of her version of the events. Ultimately, Kiteley J. was not satisfied that Ms. Mills’ failure to attend before Master Polika was due to accident or mistake. I am not aware of any basis for challenging her conclusion.
25Further, as Ms. Mills was the moving party, it is not open to her to complain that Kiteley J. did not have the material that was before Master Polika. It was Ms. Mills’ responsibility as the moving party to place any relevant material before the court. Further, it would have been open to Kiteley J. to rely on Master Polika’s finding that the affidavit of service was conclusive evidence of Ms. Mills having been served.
26The motion is accordingly dismissed with costs to the respondents.
27I should add that I allowed Ms. Mills the opportunity to file additional material after this matter was heard solely as an indulgence to an un-represented litigant. I did not, however, permit her to respond to reply materials filed by one of the respondents as Ms. Mills had already had ample opportunity to place her position before the court. On August 31, 2001, I allowed the in-court filing of the Divisional Court motion record on the leave application to supplement Ms. Mills’ original material. I also held the motion down until 2:30 p.m., and permitted Ms. Mills to file a supplementary affidavit in court at that time.
“Simmons J.A.”