Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT
RE: Chopak v. Patrick
COUNSEL: Ms Chopak, self-represented Appellant Thomas D. Galligan, for the Respondent
BEFORE: D.L. Corbett J.
In Chambers, In Writing
CASE MANAGEMENT ENDORSEMENT
Background
1Schabas J., sitting as a single judge of the Divisional Court, allowed an appeal in part from the judgment of the Deputy Judge of the Small Claims Court, reducing the damages awarded to $5,000, with a consequential reduction in the quantum of costs awarded (Chopak v. Patrick, 2020 ONSC 5431 (Div. Ct.)).
2Ms Chopak seeks to appeal this decision further.
3There is some confusion in the materials filed by Ms Chopak – she has brought her appeal in Divisional Court and yet some of her documents are styled as being in the Court of Appeal.
4Self-represented litigants, such as Ms Chopak, are entitled to help and support from the courts in navigating the court process. In this endorsement I dismiss Ms Chopak’s motion for leave to appeal in Divisional Court – because she is in the wrong court – and give her guidance for moving forward in the Court of Appeal.
Jurisdiction
5The Divisional Court and the Court of Appeal are separate appellate courts. The Court of Appeal is the higher court – indeed, the highest court in Ontario.
6An appeal from a final order of the Small Claims Court goes to the Divisional Court. It is heard by a single judge of the Divisional Court: Courts of Justice Act, ss. 31(a) and 21(2)(b). An appeal from an order of the Divisional Court lies to the Court of Appeal with leave of the Court of Appeal: Courts of Justice Act, s.6(1)(a).
7If Ms Chopak wishes to appeal from the decision of Schabas J., then she must bring a motion for leave to appeal in the Court of Appeal.
8Commencing a motion for leave to appeal in the Divisional Court does not count as commencing a motion for leave to appeal in the Court of Appeal. Copying both courts on correspondence does not cure the problem. Ms Chopak needs to contact the Court of Appeal office, provide it with a copy of this endorsement, explain her situation, and obtain instructions on how to proceed with her motion for leave to appeal.
Disposition
9Ms Chopak’s motion for leave to appeal (Div. Ct. File 333/20) is dismissed without prejudice to proceedings in the Court of Appeal.
Costs
10Mr Patrick seeks costs of these proceedings in the Divisional Court fixed at $1,000. These are denied. Ms Chopak’s motion for leave to appeal in the Divisional Court has been disposed of summarily pursuant to R.2.1.01. Mr Patrick was not required to incur assessable costs. The process worked as it should to summarily dispose of this matter with a minimum of cost and delay for the parties, and there is no basis for imposing costs on Ms Chopak for making an error in selecting the court in which she pursued her motion. Ms Chopak should understand, however, that costs awards are ordinarily made to a successful litigant in proceedings in this court and in the Court of Appeal, and she could well be required to pay costs if she moves for leave to appeal in the Court of Appeal and is unsuccessful.
11Finally, Ms Chopak may learn that she has missed her deadline for seeking leave to appeal in the Court of Appeal and may need to move for an extension of time to bring her motion for leave to appeal. She may obtain information about what she will need to do from staff in the office of the Registrar of the Court of Appeal.
D.L. Corbett J.
Date: November 12, 2020