Bingham v. Dollak, 2018 ONSC 5654

Court File and Parties

Citation: Bingham v. Dollak, 2018 ONSC 5654 Divisional Court File No.: 672/15 Date: 2018-09-25 Superior Court of Justice – Ontario Divisional Court

Re: Catherine Georgina Bingham, Applicant (Plaintiff) And: Paul Dollak, Respondent (Defendant)

Before: Marrocco A.C.J.S.C.

Counsel: Self-represented Plaintiff Elizabeth Roberts, for the Respondent

Heard at: Toronto, Date: September 19, 2018

Endorsement

[1]

Background

In May 2003 Catherine Bingham was arrested by police and taken to Sunnybrook Hospital under the authority of a Form 2 pursuant to the provisions of the Mental Health Act R.S.O. 1990 c. M.7. Ms. Bingham was released from Sunnybrook after being detained there for approximately four and one-half hours. See C.B. v Sawadsky (2006), 2006 34259 (ON CA), 82 O.R. (3d) 661 at para. 2

2After her release, Ms. Bingham hired a lawyer, the defendant Paul Dollak, to sue those responsible for her detention.

3In June 2003 Ms. Bingham sued one of the doctors at Sunnybrook Hospital, as well as the Hospital itself, for unlawfully detaining her, false imprisonment and breach of her Rights under the Canadian Charter of Rights and Freedoms.

4Ms. Bingham’s action was dismissed in 2005. Her appeal from that dismissal was dismissed in 2006.

5Ms. Bingham claims that she paid Mr. Dollak $145,000 for this unsuccessful $50,000 claim.

6Ms. Bingham then sued Mr. Dollak in 2007 for negligence. Ms. Bingham amended her statement of claim against Paul Dollak in 2009 to specifically claim damages of $5,000,000.

7Mr. Dollak successfully obtained summary judgment dismissing Ms. Bingham’s claim in its entirety on December 4, 2015. Because the summary judgment order resulted in Ms. Bingham’s claim being entirely dismissed, it is a final order.

8Ms. Bingham filed a motion for leave to appeal the summary judgment order on December 21, 2015. On June 27, 2018 the Divisional Court dismissed Ms. Bingham’s motion for leave to appeal for delay because Ms. Bingham had not perfected her appeal within one year pursuant to Rule 61.13 (6).

9On this motion Ms. Bingham moves in part to set aside the June 27, 2018 order of the Divisional Court.

10Ms. Bingham’s motion cannot succeed, and it is dismissed.

[11]

Jurisdiction

An appeal lies to the Divisional Court from a final order of a judge of the Superior Court of Justice provided the requirements for monetary jurisdiction are satisfied. See Ball v Donnais (1993), 1993 8613 (ON CA), 13 O.R. (3d) 322 at p. 324; Stoiantis v Spirou, 2008 ONCA 553 at para. 22.

12The requirements for monetary jurisdiction are set out in sections 19 (1) (a) of the Courts of Justice Act R.S.O. 1990, c. C.43. Section 19 (1) (a) provides as follows:

19 (1)(a) An appeal lies to the Divisional Court from, a final order of a judge of the Superior Court of Justice, as described in subsections (1.1) and (1.2);

13Subsections 1.1 and 1.2 of section 19 provide as follows:

(1.1) If the notice of appeal is filed before October 1, 2007, clause (1) (a) applies in respect of a final order,

(a) for a single payment of not more than $25,000, exclusive of costs;

(b) for periodic payments that amount to not more than $25,000, exclusive of costs, in the 12 months commencing on the date the first payment is due under the order;

(c) dismissing a claim for an amount that is not more than the amount set out in clause (a) or (b); or

(d) dismissing a claim for an amount that is more than the amount set out in clause (a) or (b) and in respect of which the judge or jury indicates that if the claim had been allowed the amount awarded would have been not more than the amount set out in clause (a) or (b). 2006, c. 21, Sched. A, s. 3; 2009, c. 33, Sched. 2, s. 20 (2).

(1.2) If the notice of appeal is filed on or after October 1, 2007, clause (1) (a) applies in respect of a final order,

(a) for a single payment of not more than $50,000, exclusive of costs;

(b) for periodic payments that amount to not more than $50,000, exclusive of costs, in the 12 months commencing on the date the first payment is due under the order;

(c) dismissing a claim for an amount that is not more than the amount set out in clause (a) or (b); or

(d) dismissing a claim for an amount that is more than the amount set out in clause (a) or (b) and in respect of which the judge or jury indicates that if the claim had been allowed the amount awarded would have been not more than the amount set out in clause (a) or (b). 2006, c. 21, Sched. A, s. 3; 2009, c. 33, Sched. 2, s. 20 (3).

14In this case there is no notice of appeal. Ms. Bingham filed a Notice of Application for Leave to Appeal on December 21, 2015. While there is a difference between the two documents, it would be inconsistent with this Court’s equitable jurisdiction to give effect to that difference in this case. Accordingly, I intend to treat the Notice of Application for Leave to Appeal as if it were a Notice of Appeal.

15As a result, the applicable subsection for jurisdiction purposes is section 19 (1.2) of the Courts of Justice Act. As indicated, the claim in this case was for $5 million in damages which is obviously greater than $50,000. Accordingly, this court has no jurisdiction to hear an appeal from the December 4, 2015 order.

16Because this court has no jurisdiction Ms. Bingham cannot succeed here and there is no point in varying the Registrar’s order dismissing her motion for leave to appeal.

[17]

Procedural History

There is one other aspect of this matter which must be highlighted. During argument Ms. Bingham, who was representing herself, told me that immediately after the December 4, 2015 order dismissing her action, she went to the Court of Appeal office and attempted to file an appeal. She indicated that she was told by the Court of Appeal office staff that the appeal belonged in the Divisional Court. Ms. Bingham was then taken to the Divisional Court office where Divisional Court staff advised her that she required leave to appeal. The Divisional Court accepted her documents and this matter has proceeded as an application for leave to appeal with the result that now Ms. Bingham is out of time to file an appeal in the Court of Appeal and must now bring an application in the Court of Appeal for an order extending the time for filing her notice of appeal.

18Counsel for Paul Dollak wrote to Ms. Bingham and advised her to get legal advice about her proposed appeal to the Divisional Court. It is not surprising that Ms. Bingham ignored this advice. Ms. Bingham had been told by Court of Appeal staff that the Court of Appeal was not the correct court for her and Divisional Court staff had acted as if the Divisional Court was the proper court for her appeal.

[19]

Costs

Accordingly, there will be no order for costs.

[20]

Conclusion

For the reasons indicated, Ms. Bingham’s motion to vary the order of the Registrar of the Divisional Court dismissing her application for leave to appeal the summary judgment order dismissing her action is dismissed.