Court File and Parties

CITATION: Sochnyeva v. Mitchell, Bardyn & Zalucky, 2016 ONSC 3345 DIVISIONAL COURT FILE NO.: 681/15 DATE: 20160524

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Hanna Sochnyeva, Appellant / Moving Party AND: Mitchell, Bardyn & Zalucky LLP, Barristers & Solicitors and Olena Brusentsova Respondents / Responding Parties

BEFORE: L. A. Pattillo J.

COUNSEL: Appellant – Self-Represented R. Leigh Youd, for the Respondents

HEARD: In Writing

ENDORSEMENT

Introduction

[1] The Appellant, Hanna Sochnyeva, seeks leave to appeal from two orders of the Honourable Justice Dow dated December 18, 2015. In one order, the motion judge dismissed the Appellant’s motion that the Respondents, Mitchell, Bardyn & Zalucky LLP and Olena Brusentsova, failed to comply with an order requiring mandatory mediation. In the other order, the motion judge allowed the Respondents’ cross-motion and stayed the action.

[2] The Appellant failed to attend mandatory mediation, scheduled at her request, and then subsequently brought a motion that the Respondents failed to comply with an order requiring mandatory mediation, despite there being no such order. The Respondents then brought a cross-motion to dismiss or stay the Appellant’s action pending her compliance with various cost orders against her.

[3] At the time the two motions came before Justice Dow on December 18, 2015, the Appellant had a motion pending in Divisional Court, returnable February 11, 2016 for an order to extend the time for leave to appeal from the order of Justice Pollack dismissing her appeal from an order of Master Dash. The Appellant had failed to pay costs of $750 awarded against her by Master Dash and $1,500 awarded against her by Justice Pollack.

[4] In his endorsement on the Appellant’s motion, Justice Dow noted that in addition to the above cost awards, the account of the mediator of $708 also remained unpaid.

[5] Justice Dow further noted that it would be inappropriate to proceed with the Appellant’s motion while the mediator’s account remained outstanding. In the result, he dismissed the Appellant’s motion without prejudice to her seeking an order that the parties attend mediation on the condition that the Appellant show proof of payment of the mediator’s account.

[6] On the Respondents’ cross-motion, in light of the Appellant’s pending motion in Divisional Court concerning the order of Justice Pollack, Justice Dow, noting that it was the Respondents’ alternative relief, granted a stay of the Appellant’s action until the hearing of the Appellant’s motion on February 11, 2016 and complete compliance with any order made at that time, “particularly with regard to the payment of costs made then or previously.”

[7] Finally, Justice Dow granted costs of both the Appellant’s motion and the Respondents’ cross-motion to the Respondents, fixed at $1,500 and payable within 90 days failing which the Respondents could renew their motion for the relief sought on notice to the Appellant.

[8] The Appellant’s motion to extend the time for leave to appeal to the Divisional Court from the order of Justice Pollack came before Justice Sachs on February 11, 2016. The Appellant failed to appear. Justice Sachs dismissed the Appellant’s motion and awarded costs to the Respondents in the amount of $1,500.

[9] The Appellant was advised in writing by the Divisional Court that her motion for leave to appeal from the orders of Justice Dow would be heard in writing on May 20, 2016. On May 16, 2016, the court received a letter from the Appellant dated May 12, 2016, requesting an adjournment of her leave motion stating that she had not received any documents from the Respondents and she wished to submit a reply factum.

[10] In light of the fact that the Respondents’ affidavit of service noted that their responding motion record, factum and brief of authorities were served by mail on April 6, 2016 to the Appellant’s address along with the fact there is no right to file a reply factum in the Divisional Court on leave motions (Rule 61.03 applies to the Court of Appeal, not the Divisional Court) except with the approval of a judge of the Divisional Court, which leave has not been granted, I directed the Divisional Court office to advise the Appellant that her motion would not be adjourned.

[11] Subsequently, the Appellant wrote a further letter to the court dated May 19, 2016, renewing her request for an adjournment of her motion for the same reasons expressed in her May 12, 2016 letter. Her further request is denied for the above reasons.

Test for Leave to Appeal

[12] The test for granting leave to appeal under rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

[13] Under rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.).

[14] Under rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).

Analysis

[15] The above tests to obtain leave to appeal from an interlocutory order are onerous. Having regard to the material filed, I am satisfied that the Appellant has failed to meet either test.

[16] The Appellant has not established that there is a conflicting decision in respect of a matter of principle. This is not surprising given the fact specific nature of the orders made by Justice Dow. Nor do I consider, given the facts and the issues before Justice Dow on the motions, that there is any reason to doubt the correctness of the learned judge’s orders. Justice Dow crafted a fair and appropriate solution to the issues before him. He gave the Appellant an opportunity to keep her action alive by paying the mediator’s account and the cost orders made against her.

[17] For the above reason therefore, the Appellant’s leave to appeal the December 18, 2015 orders of Justice Dow is dismissed.

[18] The Respondents are entitled to their costs of the motion. Based on their Costs Outline filed, they are awarded partial indemnity costs fixed in the total amount of $1,787.66.

L. A. Pattillo J.

Date of Release: May 24, 2016