CITATION: Graff v. Damyanovich, 2016 ONSC 4409
DIVISIONAL COURT FILE NO.: 288/16
DATE: 20160630
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Marie Graff Plaintiff
– and –
Andrei Damyanovich Defendant
Marie Graff, self-represented Brian Pickard, for the Respondent Kahler Personal Injury Law Firm Professional Corporation
HEARD at Toronto: June 30, 2016
C. HORKINS J. (ORALLY)
[1] The plaintiff, Marie Graff, is a former client of the respondent Kahler Personal Injury Law Firm Professional Corporation.
[2] The plaintiff brings a motion for an order extending the time to appeal the Order of Master McAfee dated October 26, 2015.
[3] This Order arose from the plaintiff’s motion seeking production of the respondent’s file. According to the Master’s reasons, there were previous orders dealing with this file. For example, following an earlier order, the respondent produced its file to the plaintiff.
[4] The plaintiff reviewed the firm’s dockets and concluded that she did not have a complete copy of the file. As a result, she brought the motion in question before the Master.
[5] The plaintiff argued that she did not have the complete file. The Master’s Reasons include a detailed nine page chart listing each document and the Master’s ruling for each document with reasons.
[6] The Master dismissed the plaintiff’s motion with costs to the respondent.
[7] For each document requested, the Master ruled that the document had been produced, did not exist, there was no such document to produce or could not be located. The chart reveals that most of the documents in issue had been previously produced.
[8] For item no. 59 on the chart, such document had been produced but the Master ordered that if the plaintiff wanted another copy she could pay for same or otherwise it was not ordered to be produced again.
[9] The plaintiff filed a Notice of Appeal from the Master’s Order on November 24, 2015. This Appeal came before Matheson J. who was not sitting in the Divisional Court. Matheson J. found that the Order was final and as such the appeal was to the Divisional Court. Matheson J. went on to state that if the appeal had been properly before her, she would have dismissed the appeal and she explained why in her endorsement.
[10] I assume that Matheson J. was hoping that this would help the plaintiff understand that there was no chance of her succeeding on the appeal.
[11] Today, the plaintiff seeks an extension of the time to file her Notice of Appeal in the Divisional Court.
[12] The test for extending time to appeal is well settled. Rule 2.03 of The Rules of Civil Procedure provides that “[t]he court may, only where and as necessary in the interests of justice, dispense with compliance with any rule at any time.” Accordingly, a judge may extend any of the time requirements under the rules (see Wellwood v. Ontario (Provincial Police), 2010 ONCA 386 at para. 34; Rizzi v. Mavros, 2007 ONCA 350, at para. 16). In deciding whether to extend time to appeal, the court considers a number of factors:
● Whether the appellant formed an intention to appeal within the relevant time period
● The length of the delay and the explanation for the delay
● Prejudice to the respondent
● The merits of the appeal
● Whether the justice of the case requires the granting of an extension
[13] The respondent states that the plaintiff has not satisfied two of the factors, namely that the appeal has merit and that the justice of the case requires the granting of an extension of time to appeal. As a result, the respondent asks that the plaintiff’s motion be dismissed.
[14] I find that neither the merits of the appeal or the justice of a case, merit granting an extension of time to appeal. My reasons are as follows.
[15] The Notice of Appeal essentially seeks to have the motion re-argued. The Master heard a lengthy motion concerning the production of the respondent’s file. The plaintiff advised the Court today that 3 ½ hours were booked for this motion.
[16] I see no merit to the proposed appeal. The grounds of the appeal are best characterized as alleged errors of fact. The standard of review on an appeal from a Master’s order is palpable and overriding error on questions of fact and mix fact and law.
[17] The plaintiff submits that there is merit to the appeal because she says the Master was wrong when she accepted the respondent’s position that the documents had already been produced or that they did not exist.
[18] The Master had affidavit evidence before her and it is clear from the reasons that she accepted the evidence filed on behalf of the respondent rather than that from the plaintiff.
[19] This is an exercise of the Master’s discretion. There is nothing before me today to suggest that somehow the Master might have made a palpable and overriding error in her approach to the evidence.
[20] For example, I have no evidence to suggest that there is a basis for assuming that a particular document in fact exists when the Master accepted that it did not or that a particular document was not previously produced, when the Master said it was.
[21] The Master obviously weighed the evidence before her and made findings of fact that were not in the plaintiff’s favour.
[22] The plaintiff also states that there is an error of law and she relies on para. 4 of her Notice of Appeal. This relates to item no. 1 on the Master’s chart and deals with the respondent’s intake notes.
[23] The Master refused to order production of the intake notes and stated on the chart as follows “Copies of the notes need not be produced. Intake notes do not belong to the client. See Price v. Lambrinos, [2012] O.J. No. 4000 (Ont. Master) at para. 20).”
[24] I see no basis for this ground of appeal since paragraph 20 in Price that the Master relies on clearly supports her decision:
- They were solicitor’s notes, time dockets, internal memoranda, internal emails and the firm’s computer generated internal billing records. These documents belong to the solicitor.
[25] There are no other grounds of appeal that might be characterized as errors of law.
[26] Given the careful approach the Master took in the review of every document requested and the reasons given, there simply is no merit to this appeal.
[27] Sadly, it seems that the plaintiff cannot or will not accept that she has been given the respondent’s file. She believes that something is missing when clearly her motions have now exhausted the production issue.
[28] The justice of this case in these circumstances does not warrant extending the time to appeal, when the appeal is doomed to fail.
costs
[29] I have endorsed the back of the Motion Record as follows: “The plaintiff’s motion is dismissed. No order as to costs. Oral reasons provided today."
___________________________ C. HORKINS J.
Date of Reasons for Judgment: June 30, 2016
Date of Release: July 6, 2016
CITATION: Graff v. Damyanovich, 2016 ONSC 4409
DIVISIONAL COURT FILE NO.: 288/16
DATE: 20160630
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Marie Graff Plaintiff
– and –
Andrei Damyanovich Defendant
ORAL REASONS FOR JUDGMENT
C. HORKINS J.
Date of Reasons for Judgment: June 30, 2016
Date of Release: July 6, 2016