CITATION: Sochnyeva v. Mitchell, Bardyn & Zalucky LLP, 2016 ONSC 8201

DIVISIONAL COURT FILE NO.: 465/14 DATE: 20161107

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

HANNA SOCHNYEVA Appellant (Moving Party)

– and –

MITCHELL, BARDYN & ZALUCKY LLP Barristers & Solicitors OLENA BRUSENTSOVA Respondent (Responding Parties)

Self-represented Ilia Valitsky, for the Respondents

HEARD at Toronto: November 7, 2016

C. HORKINS J. (Orally)

[1] The Appellant, Hanna Sochnyeva, brings a motion to extend the time to review the order of Sachs J. dated February 11, 2016. This motion is necessary because a review of single judge’s order is governed by Rule 61.16(6) of the Rules of Civil Procedure which states as follows:

A person who moves to set aside or vary the order of a judge of an appellate court under subsection 7(5) or 21(5) of the Courts of Justice Act shall do so by a notice of motion that is served within four days after the order is made and states that the motion will be heard on a date to be fixed by the Registrar.

[Emphasis added]

Background

[2] The litigation between the parties started on October 1, 2013 when the Appellant commenced an action against the Respondents (her former solicitors). This was an action in which the Appellant alleged that her former solicitors were negligent in their representation of her on a summary judgment motion.

[3] Since the issuance of this action, numerous motions have brought and orders have been issued by the court. These motions and orders are detailed in a chronology that the Respondents prepared. For ease of reference, a copy of this chronology is attached to these reasons.

[4] The chronology is important because it provides context for the motion before the Court today.

[5] The numerous orders made against the Appellant started in June 2014. On June 4, 2014, Master Dash ordered the Appellant to provide the Respondents with copies of the documents referred to in her Statement of Claim. He also ordered the Appellant to pay the Respondents costs of $750.00 within 30 days.

[6] The Appellant served a motion for leave to appeal the order of Master Dash. Pollak J. dismissed this motion on September 18, 2014. She also ordered the Appellant to pay the Respondents costs of $1,500.00.

[7] On September 24, 2014, the Appellant served a second motion for leave to appeal the orders of Master Dash and Pollak J.

[8] The Respondents served their responding material on November 27, 2014.

[9] On July 14, 2015, the Respondents brought a motion to dismiss the second leave motion. The Respondents served the Appellant with their motion material on June 24, 2015. She filed no responding material.

[10] The Appellant sent a letter to the Court stating that she would not attend the motion on July 14, 2015 because of health difficulties. Sachs J. adjourned the Respondents’ motion on terms. Sachs J.’s reasons are as follows:

Ms. Sochnyeva has failed to proceed with this motion and thus the responding parties have brought a motion today requesting that Ms. Sochnyeva’s motion for leave to appeal be dismissed for delay. Ms. Sochnyeva did not appear today. Instead she wrote to the Court advising that she could not attend due to health difficulties and seeking an adjournment. Pursuant to Rule 62.02 of the Rules of Civil Procedure, motions for leave to appeal from an interlocutory order of a Judge (which Pollak J.’s Order is) shall be heard in writing. The responding parties have urged me to deal with the motion today because I have all the written material. While this is an attractive argument, I have a concern that Ms. Sochnyeva was not aware that this could be the result of today’s motion, a concern that is exacerbated by the fact that the responding parties have appeared to make oral submissions. In this regard, the responding parties (who are represented) did not advise Ms. Sochnyeva that she should be bringing this motion in writing. For these reasons I am directing that Ms. Sochnyeva is to file her request for leave to appeal in writing in accordance with Rule 62.02 within 14 days of the date of this Endorsement. A copy of this Endorsement shall be mailed to Ms. Sochnyeva at 1 Fortieth Street, Toronto, Ontario M8W 3M8 by the responding parties’ solicitor today.

[11] Instead of complying with the July order of Sachs J., the Appellant served a motion on November 5, 2015 for an order extending the time to vary the order of Sachs J. dated July 14, 2015. This motion was scheduled for February 11, 2016.

[12] On December 18, 2015, two motions came before Dow J. The Appellant brought a motion that was dismissed. The Respondents’ motion for a stay of the action was allowed. Dow J. stayed the Appellant’s action until February 11, 2016 (which was the return of her motion) until payment of all of the outstanding costs orders against the Appellant in favour of the Respondents and pending compliance with any order made by the Court on February 11, 2016.

[13] On December 31, 2015, the Appellant filed a motion for leave to appeal the order of Dow J. Leave was denied by Pattillo J. on May 24, 2016. The Appellant was ordered to pay the Respondents costs of $1,787.66.

[14] On June 6, 2016, the Appellant served a notice of motion to appeal the order of Pattillo J. Recently, the Ontario Court of Appeal dismissed this appeal and ordered the Appellant to pay the Respondents costs of $1,000.00.

[15] On February 11, 2016, the Appellant’s motion to extend the time to vary the July 14, 2015 order of Sachs J. came before the Court. As it turned out, the motion was heard by Sachs J. The Court waited until 11:30 a.m. before proceeding to deal with the Appellant’s motion. The Appellant never appeared.

[16] The Appellant’s February 3, 2016 letter was before the Court together with all of her motion material and the amended motion materials that she had filed.

[17] According to her February 3, 2016 letter, she was unsure if the amended motion material was going to be put before the judge. The material had been filed late. In this letter, she asked the Divisional Court office for a new date for her motion.

[18] The Supplementary Affidavit and Motion record were before Sachs J. on February 11, 2016 and Sachs J. proceeded with the motion in the Appellant’s absence.

[19] Sachs J. made the following orders:

(1) First, she dismissed the Appellant’s motion for an extension of time to appeal the costs orders of Master Dash and Pollak J.

(2) Second, she ordered that the Appellant “has no further right to file for leave to appeal the orders of Masters Dash and Pollak J.”

(3) Lastly, she ordered the Appellant to pay the Respondents costs of $1,500.00.

[20] The Appellant then brought a motion under Rule 61.16(6) returnable on May 12, 2016 to extend the time to allow her to file a notice of motion to review the February 11, 2016 order of Sachs J. This motion was adjourned on May 21, 2016 and again on October 6, 2016 at the Appellant’s request. It is this motion that is before the Court today.

Analysis

[21] The test for an extension of the four day time limit under Rule 61.16(6) is set out in Zeitoun v Economical Insurance Group, 2012 ONSC 2974 at para. 11. It requires the Court to consider the following four considerations:

(1) Was there an intention to appeal within the time for appeal.

(2) Is there a reasonable explanation for the delay having regard to the length of the delay.

(3) Whether there is any prejudice to the respondent.

(4) The apparent merit of the appeal in question.

[22] Further, the Divisional Court in Azeff v Ontario Securities Commission, [2016] O.J. No. 1063 at para. 7 stated that “extensions ought not to be routinely granted.”

[23] The Respondents accept that the Appellant has shown an intention to appeal within the four day time limit. She attended at the Divisional Court office to inquire about an appeal on February 15, 2016. However, I find that the Appellant has not satisfied the remaining criteria. This leads me to reject the Appellant’s motion.

[24] First, the Appellant has provided no evidence to explain her delay of 20 days between February 11, 2016 to March 2, 2016, the date that she served this motion.

[25] Further, the Respondents have suffered real prejudice. Since this action was commenced against them on October 1, 2013, they have had to respond to numerous motions that the Appellant has brought. There are numerous costs orders against the Appellant in favour of the Respondents and none have been paid.

[26] The Appellant’s intended review of the February 11, 2016 order of Sachs J. is devoid of any merit. The only ground of review that the Appellant has articulated today is her position that she did not intend to go ahead with the motion on February 11, 2016 because she was not sure if the judge was allowing her supplementary material to be filed late. This in my view is not a ground of review that has merit.

[27] The Appellant had an obligation to attend Court on February 11, 2016 and she failed to do so. Sachs J. exercised her discretion to proceed in the Appellant’s absence.

[28] Given the Appellant’s conduct in this litigation and the numerous outstanding court orders requiring the Appellant to pay the Respondents costs, Sachs J. reasonably exercised her discretion and proceeded with the motion.

[29] In these circumstances, there is simply no merit to the intended appeal.

[30] In summary, the Appellant’s motion is dismissed.

Costs

[31] I have endorsed the Motion Book as follows: “Appellant’s motion is dismissed. Oral reasons delivered today. The Respondents are entitled to costs of the motion and those before Pattillo J. reserved from October 6, 2016. They seek partial indemnity of $1,750.32 all in. This is fair and reasonable. Appellant is ordered to pay these costs. Approval of this order by Appellant is waived.”

___________________________ c. horkins J.

Date of Reasons for Judgment: November 7, 2016

Date of Release: November 9, 2016

CITATION: Sochnyeva v. Mitchell, Bardyn & Zalucky LLP, 2016 ONSC 8201

DIVISIONAL COURT FILE NO.: 465/14 DATE: 20161107

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

HANNA SOCHNYEVA Appellant (Moving Party)

– and –

MITCHELL, BARDYN & ZALUCKY LLP Barristers & Solicitors OLENA BRUSENTSOVA Respondent (Responding Parties)

ORAL REASONS FOR JUDGMENT

C. HORKINS J.

Date of Reasons for Judgment: November 7, 2016

Date of Release: November 9, 2016

CHRONOLOGY

DATE	STEP	COMMENCED BY	NOTES:
October 1, 2013	Action commenced	Appellant	Commenced following dismissal of the Appellant’s Appeal in a prior action where the Respondents were retained solely to represent the Appellant on a summary judgment motion
June 4, 2014	Motion to dismiss action or compel response to request to inspect Before Master Dash	Respondents	Master Dash finds in favour of Respondents and awards costs of $750, payable in 30 days
September 18, 2014	Motion for leave to appeal costs order of Master Dash Before the Honourable Justice Pollak (the “1st Leave Motion”)	Appellant	Pollak J. dismisses the motion and awards the Respondents costs of $1,500
September 24, 2014	Motion for leave to appeal to the Divisional Court commenced (the “2nd Leave Motion”)	Appellant	Respondents deliver responding materials November 27, 2014. 8 months pass without the Appellant taking any steps to have the First Leave Motion heard.
July 13, 2015	Motion for an order that the Respondents delayed Mandatory Mediation commenced (the “Appellant’s Mediation Motion”)	Appellant	Mandatory Mediation was scheduled for August 11, 2015 on June 5, 2015.
July 14, 2015	Motion to Dismiss for delay the 2nd Leave Motion (the “Motion to Dismiss”) Before the Honourable Justice Sachs	Respondents	Appellant was served with materials on June 24, 2015 Appellant sent letter to Court advising of non-attendance. Sachs J. orders the Appellant to re-file First Leave Motion materials in writing within 14 days notwithstanding the Appellant’s letter (the “1st Sachs Order”)
August 11, 2015	Mandatory Mediation Roster Mediator is Lavonne McCumber-Eals	Appellant	Mediator and counsel for the Respondents attends, the Appellant does not. As a result, a Certificate of Non-Compliance is issued against the Appellant.
October 8, 2015	Appellant’s Mediation Motion	Appellant	Appellant failed to confirm and unilaterally adjourned without notice to the Respondents to October 21, 2015
October 21, 2015	Appellant’s Mediation Motion	Appellant	Appellant again failed to confirm date. Parties agree to adjourn to December 18, 2015.
November 5, 2015	Motion for an extension of time / to vary the Sachs Order (the “February 11 Motion”)	Appellant	Returnable February 11, 2016
December 18, 2015	Appellant’s Mediation Motion (Respondents bring cross-motion to dismiss This Action or stay This Action pending payment of the costs orders of Master Dash and Pollak J.) Before the Honourable Justice Dow	Appellant/Respondents	Dow J endorses the record as follows: - dismiss the Appellant’s Mediation Motion; - stay This Action pending resolution of This Motion and satisfaction of all orders made at This Motion - costs in favour of the Respondents in the sum of $1,500 payable within 90 days
December 31, 2015	Motion for leave to appeal the order of Dow J. commenced (the “3rd Leave Motion”)	Appellant	Notice of Motion served
February 11, 2016	The February 11 Motion is heard before the Honourable Sachs J.	Appellant	Sachs J. dismisses the February 11 Motion, and awards costs to the Respondents in the sum of $1,500 (the “2nd Sachs Order”)
March 2, 2016	The Appellant serves a Notice of Motion for an extension of time to review the 2nd Sachs Order	Appellant	Originally returnable May 12, 2016 but adjourned to October 6, 2016.
May 24, 2016	The 3rd Leave Motion is heard in writing by the Honourable Justice Pattillo	Appellant	The Honourable Justice Pattillo dismisses the 3rd Leave Motion and awards costs in the sum of $1,787.66 to the Respondents (the “Pattillo Order”)
June 6, 2016	The Appellant serves by fax a Notice of Motion for Leave to Appeal the Pattillo Order to the Court of Appeal ( the “4th Leave Motion”)	Appellant	In writing.