COURT FILE NO.: 626/08
DATE: 20090408
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
ELEANOR D. BAINES
Plaintiff
- and -
ING HALIFAX INSURANCE COMPANY
Defendant
- and -
ELEANOR BAINES
Plaintiff
- and
N. HEHAR and M. HEHAR
Defendants
In Person
Guy Rasquin, for the Responding Party, Linett & Timmis
HEARD at Toronto: April 8, 2009
LOW J.: (Orally)
[1] The preliminary issue to be decided is whether an extension of time should be granted for the bringing of this motion for leave to appeal the orders of Archibald J. dated May 27, 2008.
[2] The time for launching a motion for leave is seven days. When this motion came on for hearing on January 30, 2009, Karakatsanis J. adjourned the motion to give the moving party, Ms. Baines, an opportunity to file sworn evidence. Notwithstanding that over two months has elapsed since that time, Ms. Baines has not filed evidence relevant to the extension of time. There is no evidence explaining the delay and setting out facts which would warrant the granting of an extension of time to seek leave to appeal.
[3] On that basis alone, the motion should be dismissed, but regardless of whether an extension of time is warranted, I am satisfied that neither of the two tests in Rule 62.02(4) of the Rules of Civil Procedure have been met. That rule provides that 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.
[4] There is no conflicting decision within the meaning of Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542.
[5] As to the second test, Ms. Baines states that she does not take the position that Archibald J. was in error. Her position was that Archibald J. did not have all of the facts before him and that the reason for that was that she did not file evidence and did not show up on time for the argument of the motion. That circumstance does not give rise to a good reason to doubt the correctness of the order. The order is made based on the evidence in the record.
[6] It is apparent from Ms. Baines’ submissions that one of her present objectives is to obtain possession of the solicitor’s file herself, as she has not been able to obtain new legal representation.
[7] The order of Archibald J. contemplates and addresses release of the file to new solicitors but not to Ms. Baines personally. At the time, it was obviously the expectation that Ms. Baines would obtain new solicitors. If her plans and circumstances have changed, it is open to Ms. Baines to bring a motion for release of the file directly to her.
COSTS
[8] The motion is dismissed for oral reasons given today. The costs of the motion to the responding party’s solicitors, Linett & Timmis, fixed at $800.00, payable out of funds secured by the charging order and if not so paid within twelve months of this date, to be a general obligation of the plaintiff.
LOW J.
Date of Reasons for Judgment: April 8, 2009
Date of Release: April 15, 2009
COURT FILE NO.: 626/08
DATE: 20090408
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
ELEANOR D. BAINES
Plaintiff
- and -
ING HALIFAX INSURANCE COMPANY
Defendant
- and -
ELEANOR BAINES
Plaintiff
- and
N. HEHAR and M. HEHAR
Defendants
ORAL REASONS FOR JUDGMENT
LOW J.
Date of Reasons for Judgment: April 8, 2009
Date of Release: April 15, 2009