Court of Appeal for Ontario

Date: 2017-04-07 Docket: C62343 & C62344

Panel: Doherty, MacFarland and Rouleau JJ.A.

Docket: C62343

Between

Luisa Aguas Appellant (Plaintiff)

and

The Estate of Curtis Rivard, deceased, Premier Express Lines and Associates Leasing Respondents (Defendants)

Docket: C62344

And Between

Luisa Aguas Appellant (Plaintiff)

and

Stephanie L. Tanner, David G. Scherer, Scherer Leasing Inc. and Lajos Guth Respondents (Defendants)

Counsel

For the appellant: John Bruggeman

For the respondents, David G. Scherer (Estate) and Scherer Leasing Inc.: Blair Nitchke and David Sazant

For the respondents, Premier Express Lines and The Estate of Curtis Rivard: Allan L. Rachlin and Jeffrey Small

Heard and released orally: April 7, 2017

On appeal from: The judgment of Justice David L. Edwards of the Superior Court of Justice, dated June 1, 2016.

Endorsement

[1] The trial judge, in our view, did not have a complete picture of the particular facts and circumstances in these cases when he dismissed the appellant's actions.

[2] Here there were a series of evolving events leading up to the dismissals, including an appearance before a trial management judge who made certain orders, as well as appearances seeking an adjournment.

[3] The self-represented litigant was, at the time set for trial, non-compliant with a trial management order and in addition her brother, who was her main liability witness, had been recently injured and was hospitalized in Ecuador.

[4] As a self-represented litigant with language issues, she was no doubt unaware of all that could be and should have been said on that occasion.

[5] In our view, these matters in fairness to both sides, should go back for reconsideration of whether the matters should proceed or not on a more fulsome record, which minimally should include a full history as well as some detail, on the available medical evidence addressing the merits of the appellant's claims and particularly so in circumstances where appellant's counsel has confirmed that he will be representing the appellant should the matters proceed to trial.

[6] To carry out the terms of this order the plaintiff is directed to bring a motion within 60 days before a judge of the Superior Court to demonstrate to the court why these matters should proceed.

[7] The appeals are allowed and the orders of Edwards J. are set aside.

[8] No costs.

"Doherty J.A."

"J. MacFarland J.A."

"Paul Rouleau J.A."