Court of Appeal for Ontario

Citation: Montague v. Toronto Transit Commission, 2019 ONCA 57

Date: 2019-01-28

Docket: M49684

Rouleau, Pardu and Benotto JJ.A.

Between

Yvonne Montague

Plaintiff (Appellant)

and

Toronto Transit Commission

Defendant (Respondent)

Yvonne Montague, acting in person

Andrew Davidson and Alexandra Vaiay, for the respondent

Heard: In writing

Reasons for Decision

[1] The moving party requests reconsideration pursuant to r. 59.06(2) of this court’s order dated September 21, 2018 dismissing her motion for leave to appeal from an order of the Divisional Court.

[2] The Divisional Court dismissed the moving party’s appeal from the dismissal after trial of her claim for damages. Her claim related to a fall she claimed was caused by a negligent Toronto Transit Commission (TTC) driver.

[3] In her notice of motion, the moving party advances two grounds. The first is that fresh evidence contained in the affidavit she has tendered shows that her appeal ought to have been allowed. The second is her allegation that the foreman of the jury at her trial failed to divulge that he had been a witness on behalf of the TTC in a recent civil proceeding and could not, accordingly, fairly act as a juror in her case.

[4] The fresh evidence contained in the moving party’s affidavit puts forward allegations and information that, from our review, was virtually all before the Divisional Court and was addressed in its reasons. In effect, the moving party seeks a rehearing of the appeal she had advanced and that was rejected by the Divisional Court.

[5] With respect to the allegation concerning the foreman, no evidence was tendered to support such a serious allegation. The moving party simply alleges that a witness in the case of Ahmed v. Toronto Transit Commission, 2015 ONSC 4130, was the jury foreman in her matter. Nothing other than the appellant’s subjective belief that the jury foreman looked to be the same man whom she saw testifying in Ahmedwas advanced in support of this claim. This concern was not raised at trial. It was first raised in the Divisional Court and rejected by that court.

[6] The moving party has not raised any new issues that raise doubt as to the correctness of the Divisional Court’s decision or of this court’s denial of the leave to appeal application.

[7] This court’s jurisdiction to set aside or vary its own orders pursuant to r. 59.06(2) is limited to exceptional circumstances. These have not been made out in this case. The motion is therefore dismissed.

“Paul Rouleau J.A.”

“G. Pardu J.A.”

“M.L. Benotto J.A.”