Leong and Shah et al v. Ryabikhina et al., 2013 ONSC 6723

CITATION: Leong and Shah et al v. Ryabikhina et al., 2013 ONSC 6723

DIVISIONAL COURT FILE NO.: 79/13

DATE: 20131101

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

PARDU, C. MCKINNON, WILTON-SIEGEL JJ.

BETWEEN:

Dr. Renata Leong, Dr. Rajiv Shah and St. Michael’s Hospital

Respondents

– and –

Elena Ryabikhina and Nadejda Ryabikhina

Appellant

K. Booth, for Dr. Leong and Dr. Shah

J. Gutman, for St. Michael’s Hospital

Nadejda Ryabikhinar, in Person

HEARD October 17, 2013

BY THE COURT:

1Nadejda Ryabikhina brings a motion to the Divisional Court to set aside or vary an order of Aston J. dated March 20, 2013.

2On April 13, 2012, Dr. Leong and Dr. Shah brought an application to have Nadejda Ryabikhina declared a vexatious litigant and to restrain her from instituting or continuing any proceedings in any court except with leave.

3Nadejda Ryabikhina then brought a motion before Master Graham asking among other things for an order for an examination of Dr. Leong. On October 2, 2012, the Master ordered that the motion would be adjourned to October 24, 2012, that the motion materials were to be served on the Public Guardian and Trustee, and that no other decisions could be made on the motion until the issue of the moving party’s capacity was resolved.

4On November 14, 2012, she served a Notice of Appeal from the order of the Master and sought to set aside the Master’s order and claimed the same relief originally sought from the Master.

5On January 21, 2013, Roberts J. heard the appeal from the order of Master Graham.

6On January 23, 2013 before Roberts J. released her decision on the appeal, the moving party served a Notice of Appeal returnable before the Divisional Court from both the Master’s order and Robert J.’s order and seeking other relief substantially similar to what had been sought on the motion.

7On January 28, 2013, Roberts J. dismissed the appeal finding it “wholly without merit”. She also prohibited Nadejda Ryabikhina from bringing any other motions without leave until the costs were paid.

8On January 31, 2013, counsel for the physicians wrote to Nadejda Ryabikhina advising her that the order of Roberts J. was interlocutory, that leave was required to appeal and that the physicians would move to quash the appeal.

9In addition to her appeal, Nadejda Ryabikhina served a motion returnable before Aston J. asking for an order adding a minor child to “the medical malpractice applications and to appoint Children’s Lawyer for a child”.

10On March 20, 2013, Aston J. dismissed the appeal on the ground that no leave to appeal had been sought or granted. He also held that the Divisional Court had no jurisdiction to grant the relief sought in the motion brought by Nadejda Ryabikhina and ordered her to pay costs.

11At a case conference before Himel J. on June 18, 2013, Nadejda Ryabikhina indicated that she did not wish to proceed with any of the outstanding motions in the application to have her declared a vexatious litigant.

12Despite her disallowal, Nadejda Ryabikhina has brought a motion returnable before a panel of the Divisional Court to set aside the order of Aston J.

13Nadejda Ryabikhina has not demonstrated that Aston J. made any error in dismissing her appeal and motion. He was correct to do so. The motion to set aside his decision is dismissed.

14Costs should follow the result.

15Nadejda Ryabikhina asserts that she is mentally healthy. She expressed concern that any question about her health would prevent her from practicing medicine.

16Following submissions from the Public Guardian and Trustee and from Nadejda Ryabikhina before Himel J. on June 18, 2013, confirmed that she was mentally healthy, there was no issue that Nadejda Ryabikhina was under any disability.

17Despite this, Nadejda Ryabikhina submits that it would be wrong to order a person under disability to pay costs.

18We see no reason why costs should not follow the event. Costs to Respondent doctors fixed at $2,500 and to Respondent hospital fixed at $300, both payable within 30 days.

19Order to issue dispensing with the need for approval as to form by Nadejda Ryabikhina of this order.