CITATION: Lin v. Rock, 2016 ONSC 1638
DIVISIONAL COURT FILE NO.: 536/15
DATE: 20160302
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Katherine Lin
Plaintiff/ Appellant
– and –
Dr. William Rock and William Rock Medicine Professional Corporation
Defendants/Respondents
Katherine Lin, In Person
Pamela Sidey, for the Respondents/ Defendants
HEARD at Toronto: February 23, 2016
Stewart J.
Nature of the Appeal
[1] The Appellant (“Lin”) appeals the order of Master Hawkins dated October 21, 2015 which dismissed her action with costs fixed at $6,859.47.
Jurisdiction
[2] Appeals from the final order of a master are heard by a single judge of the Divisional Court pursuant to s.19(1)(c) and s. 21(2)(a) of the Courts of Justice Act, R.S.O., c.C. 43.
Standard of Review
[3] The standard of review in an appeal from the order of a master is the same as that for an appeal from the order of a judge: correctness for an error of law, palpable and overriding error for an error of fact and correctness or palpable and overriding error for a question of mixed fact and law, depending on whether there is an extricable legal principle (Zeitoun v. Economical Insurance Group 2009 ONCA 415; Wellwood v. Ontario (Provincial Police), 2010 ONCA 386).
Discussion and law
[4] The history of these proceedings has been set out in paragraphs 7 through 18 of the Respondents’ Factum.
[5] The Respondents’ motion to dismiss the action for failure to comply with interlocutory orders of the court, including orders to pay costs, was heard by Master Hawkins on October 21, 2015. Lin did not attend at that hearing nor did she file material in response to the motion.
[6] It was not disputed by Lin that she had not delivered an amended pleading as ordered and had not paid the costs orders made against her.
[7] Lin did not attend on the motion because she regarded her request for reconsideration operated as an automatic stay of the orders from which she appealed.
[8] Counsel for the Respondents advised Master Hawkins at the hearing that Lin had brought a motion in the Supreme Court of Canada for reconsideration of its denial of her application for leave to appeal dated October 8, 2015.
[9] Most recently, Lin has received a Notice from the Senior Registry Officer for the Supreme Court of Canada advising that the Registrar may request a judge to make an order that no further document relating to the proceeding be filed by Lin. Lin points to this correspondence as an indication that her appeal is still active and has not been extinguished.
[10] The case law which addresses the impact of a denial of leave to appeal to the Supreme Court of Canada and effect of any request for reconsideration was raised before Master Hawkins by Respondents’ counsel and is likewise referred to in the Respondents’ Factum filed on this appeal. The analysis applied in those cases supports a conclusion that a pending motion for reconsideration to the Supreme Court of Canada does not constitute a further appeal or prevent the court from making decisions affecting the rights of the parties in proceedings before them (see: Padelt v. 638506 Ontario Inc., 2010 Carswell Ont 10711 (ONCA); Hundley v. Garnier, 2013 BCSC 380).
[11] Accordingly, Master Hawkins had the jurisdiction to entertain the motion to dismiss. He exercised his discretion based upon the uncontroverted failure by Lin to abide by interlocutory orders or pay costs. He dismissed her action as a result. I can find no palpable and overriding error in his doing so, or any error of law which calls the correctness of his decision into question or would justify appellate intervention.
Conclusion
[12] For these reasons, this appeal is dismissed.
[13] The Respondents may deliver written costs submissions within 20 days of the date of release of this decision, if so demanded. If the Respondents do so, Lin will have a further 20 days to respond with her written submissions.
[14] Any need for Lin to approve the formal order reflecting this disposition is hereby dispensed with.
___________________________ Stewart J.
Released: March 2, 2016
CITATION: Lin v. Rock, 2016 ONSC 1638
DIVISIONAL COURT FILE NO.: 536/15
DATE: 20160302
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Katherine Lin
Plaintiff/ Appellant
– and –
Dr. William Rock and William Rock Medicine Professional Corporation
Defendants/Respondents
REASONS FOR JUDGMENT
Stewart J.
Released: March 2, 2016