Superior Court of Justice – Ontario (Divisional Court)

Citation: Aletkina v. Hospital for Sick Children, 2014 ONSC 6446

Court File No.: 402/13

Date: 2014-11-05

Between: Nadejda Aletkina, Plaintiff

• and - Hospital for Sick Children, Defendant

Before: D.L. Corbett J.

Counsel: Ms Aletkina, on her own behalf Melanie A. Warner, for the Defendant

Heard: In Chambers, in writing, at Toronto

Endorsement

[1] I have received communications from both counsel for HSC and Ms Aletkina respecting my disposition of Ms Aletkina’s appeal.

[2] Counsel for HSC raises the issue of costs of two prior appearances on the motions to adduce fresh evidence: one before Harvison-Young J. in which Her Honour dismissed Ms Aletkina’s request, and one before a full panel of the Divisional Court setting aside the order of Harvison-Young J. and directing that the issue of fresh evidence be decided by the court hearing the appeal.

[3] I did not include any provision for costs of the motion before Harvison-Young J., or the panel that reversed Harvison-Young J., in my order of costs for the appeal and the motions before me.

[4] Ms Aletkina is not entitled to costs for the appearances before Harvison-Young J. or the full panel. HSC may be entitled to a further award of costs in respect to these prior steps.

[5] Ms Aletkina is on ODSP benefits. She is subject to a substantial costs order from the Master ($16,000), and a further costs order from this court ($10,000). HSC would incur further costs to make submissions respecting costs of the appearances before Harvison-Young J. and the full panel. While one can never be certain of such things, as a matter of practicality it seems unlikely that HSC will recover the costs that are outstanding already, let alone a further award for the prior appearances. Nevertheless, if HSC wishes to make submissions respecting its entitlement to costs for the prior appearances, it may do so by 5:00 pm, November 12, 2014. Ms Aletkina may make responding submissions by no later than 5:00 pm, November 20, 2014. There shall be no reply submissions. HSC is restricted to submissions of no longer than five pages, plus a bill of costs. Ms Aletkina is restricted to submissions no longer than seven pages.

[6] Ms Aletkina asks what effect a further endorsement may have on her motion for leave to appeal to the Court of Appeal. My endorsement of today, and any further endorsement I may make respecting costs of the previous attendances on the motion respecting fresh evidence, will not change the appeal decision. The safest course for Ms Aletkina is to proceed on the basis that her deadline for her motion for leave to appeal the appeal decision starts to run with the date of the appeal decision (October 27, 2014). Ms Aletkina notes that this deadline is November 11, 2014. November 11^th, being Remembrance Day, is a day that the courts are closed. Under Rule 3.01(1)(c), this extends the deadline to November 12, 2014.

[7] Ms Aletkina asks for audio files and transcripts of her appearances before the Divisional Court, without cost to her, for use on her contemplated motion for leave to appeal to the Court of Appeal. I have neither received nor sought responding submissions on this issue from HSC.

[8] I accept that Ms Aletkina is without means to pay for transcripts.

[9] I do not accept that transcripts are necessary for a motion for leave to appeal to the Court of Appeal. The “transcripts” referenced in Rule 61.03.1(2) are “transcripts of evidence” as referenced in R.61.03.1(4). There was no oral evidence during the argument of the appeal.

[10] Transcripts of oral argument are not needed for a motion for leave to appeal. I see no reason why unnecessary transcripts should be produced for Ms Aletkina at public expense, or why a motion for leave to appeal should be delayed pending completion of unnecessary transcripts. The request for free transcripts is denied.

[11] Either party may obtain a copy of audio files in the usual manner through the Divisional Court office.

D.L. CORBETT J.

Date: November 5, 2014