COURT FILE NO.: D03-0011
DATE: 2003-12-30
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DONALD MACALPINE,
The Plaintiff (Appellant) being self represented
Plaintiff (Appellant)
- and -
EXECUTIVE OFFICERS AND MEMBERS OF THE ONTARIO PROGRESSIVE CONSERVATIVE PARTY AND MEMBERS OF THE ONTARIO PROGRESSIVE CONSERVATIVE PARTY CAUCUS AND SPECIFIC BOARDS AND DIRECTORS OF CORPORATIONS NAMED,
Mr. G. D’Alessandro for Bell Canada
Ms. K. Jolley for the Certified General Accountants of Ontario
Onofrio Ferlisi for the Bank of Nova Scotia, TD Bank and Royal Bank of Canada
Defendants (Respondents)
HEARD: December 17, 2003
Justice Patrick Smith
[1] On June 25, 2003 Justice Helen Pierce struck out the Appellant’s statement of claim as disclosing no cause of action.
[2] The Appellant’s claim against he Respondents is for the recovery of 2.5 million dollars for damages suffered as a result of the alleged violation of his section 7 and 15 rights under the Canadian Charter of Rights and Freedoms. In the event that the matter was not resolved by February 28, 2003, the Appellant sought damages in the amount of 35 million dollars.
[3] The Appellant has served this motion, pursuant to Rule 61 of the Rules of Civil Procedure, for leave to appeal the decision of Pierce J.
[4] Without having to decide the question of whether this Court has jurisdiction to hear this motion, I find that the Appellant has not met the test set out in Rule 62.02(4) of the Rules of Civil Procedure.
[5] Rule 62.02(4) of the Rules of Civil Procedure states as follows:
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.
[6] The Appellant presented this Court with an impassioned argument based upon the principles of natural justice and fairness. Unfortunately, the Appellant failed to demonstrate that the test for leave to appeal as set out above was met. More particularly, the appellant has not shown that there are conflicting decisions by other judges in Ontario or elsewhere or that there was good reason to doubt the correctness of the decision of Pierce J.
[7] The Rules of Civil Practice are established by the legislature to provide a set of rules to ensure certainty regarding procedure in civil matters. In this instance, Rule 62.02(4) is mandatory and removes all discretion in determining when leave to appeal should be granted.
[8] Accordingly, this motion is dismissed.
[9] In the event that the parties are unable to resolve the issue of costs on their own, they shall file written argument with this Court. The Respondents shall file their material on or before January 16, 2004. The Appellant shall file his written argument on or before January 30, 2004. No further submissions shall be made without leave of this Court. All material filed shall include sufficient material to allow this Court to fix costs should an award of costs be appropriate.
Patrick Smith
Released: December 30, 2003
COURT FILE NO.: D03-0011
DATE: 2003-12-30
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DONALD MACALPINE
Plaintiff (Appellant)
- and –
EXECUTIVE OFFICERS AND MEMBERS OF THE ONTARIO PROGRESSIVE CONSERVATIVE PARTY AND MEMBERS OF THE ONTARIO PROGRESSIVE CONSERVATIVE PARTY CAUCUS AND SPECIFIC BOARDS AND DIRECTORS OF CORPORATIONS NAMED,
Defendants (Respondents)
REASONS FOR JUDGMENT
Patrick Smith
Released: December 30, 2003