Court of Appeal for Ontario

Citation: Baines v. Hehar, 2013 ONCA 469

Date: 20130709

Docket: M42150 (M42069)

Before: MacPherson, Cronk and Rouleau JJ.A.

Between

Eleanor Baines

Applicant/Plaintiff

and

Navdeep S. Hehar and Manmohan S. Hehar

Respondents/Defendant

Counsel:

Eleanor Baines, in person

Fergal Murphy and David L. Silverstone, for the respondents

Heard: July 4, 2013

ENDORSEMENT

[1] The applicant moves for an order setting aside, varying or amending the order of Hoy A.C.J.O. dated January 23, 2013, dismissing the applicant’s motion for an extension of time to seek leave to appeal from the decision of the Divisional Court, dated November 27, 2012. That decision dismissed the applicant’s appeal from a jury verdict in a personal injury action arising from a motor vehicle accident.

[2] In her Amended Notice of Motion, the applicant also requests an order: (1) compelling the respondents to produce an article that she says was used by one of the experts who testified at trial when preparing his expert report and permitting her to use the article as fresh evidence on appeal if her leave to appeal motion is granted; and (2) setting aside the Divisional Court’s costs award in favour of the respondents on the basis that the respondents’ factum at the appeal hearing before the Divisional Court was served late, contrary to the Rules of Civil Procedure.

[3] Notwithstanding the appellant’s thoughtful and articulate submissions, we see no basis for interfering with Hoy A.C.J.O.’s discretionary order declining to grant an extension of time. The only issue before this court is whether Hoy A.C.J.O. erred in her discretionary ruling. In our view, she did not.

[4] In her reasons, Hoy A.C.J.O. indicated that, on the basis of all the materials filed on the extension motion, the issues sought to be raised on appeal by the applicant were matters of significance to the parties only. The applicant challenges this conclusion, arguing that the proposed issues on appeal are relevant generally to the conduct of civil litigation by self-represented litigants, the determination of which will assist the administration of justice, including by providing clarification of the obligations of counsel and the court to self-represented litigants.

[5] We agree with Hoy A.C.J.O.’s assessment of the import of the issues sought to be raised on appeal. The applicant’s real objective is to reverse the jury’s damages awards, because the applicant regards them as too low, and the trial judge’s associated ruling on the threshold for non-pecuniary damages. These are matters particular to the interests of the litigants in this case.

[6] Many of the grounds sought to be raised by the applicant relate to the conduct of the trial, including the trial judge’s evidentiary rulings. These grounds were or could have been pursued by the applicant before the Divisional Court. To the extent that the grounds were dealt with by the Divisional Court, we see no error in that court’s analysis or disposition of them. To the extent that some identified grounds were not dealt with by the Divisional Court, they appear to be issues raised before and dealt with by the trial judge in the proper exercise of his discretion. There is no basis on which to allow a second appeal to this court in respect of those issues. Further, we see no merit to the grounds raised by the applicant in respect of the appeal hearing before the Divisional Court.

[7] In the result, the applicant has failed to identify any error by Hoy A.C.J.O. warranting intervention by this Panel.

[8] With respect to the applicant’s request for an order compelling production of a document allegedly utilized by an expert who testified at trial (Dr. A. Upton), this is a request that properly should have been made at trial or pursued with the expert on cross-examination. It is irrelevant to the challenge to Hoy A.C.J.O.’s order, now before us. We note that this production request does not appear to have been made before the Divisional Court or Hoy A.C.J.O.

[9] Finally, we see no reversible error in the Divisional Court’s costs award, even if an extension of time to seek leave to appeal from that award were granted. We note that the respondents have undertaken before this court not to enforce this outstanding costs award. In any event, the applicant has identified no error in principle concerning the challenged costs award and we see no basis to conclude that the award is clearly wrong. Accordingly, no purpose would be served by granting an extension of time in which to seek leave to appeal from the Divisional Court’s costs award.

[10] For the reasons given, this motion is dismissed. The respondents, quite properly in our view, do not seek their costs of this motion. Accordingly, we make no order for costs.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“Paul Rouleau J.A.”