Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20240927 DOCKET: COA-23-CV-0739
Hourigan, Trotter and Gomery JJ.A.
BETWEEN
Tanya Rebello Plaintiff (Appellant)
and
His Majesty the King in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services (Ontario Provincial Police) Defendant (Respondent)
Tanya Rebello, acting in person Adam Mortimer and Bhavini Lekhi, for the respondent
Heard: September 25, 2024
On appeal from the order of Justice Robert Centa of the Superior Court of Justice, dated June 13, 2023.
Reasons for Decision
[1] The appellant, Tanya Rebello, appeals the dismissal of her lawsuit alleging that the Ontario Provincial Police breached common law and statutory duties they owed to her by failing to meaningfully investigate complaints she made about potential criminal activity in her neighborhood and on her property, and that the OPP otherwise engaged in conduct that caused the appellant mental anguish, breached her privacy rights, defamed her, and violated her rights under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. At the conclusion of the appellant’s submissions, we dismissed the appeal with reasons to follow. These are our reasons.
[2] First, the appellant contends that the motion judge erred in his analysis of her claim. We disagree.
[3] In detailed and cogent reasons, the motion judge identified the elements that the appellant would have to prove to succeed in each cause of action asserted. Contrary to the appellant’s submissions, this approach was appropriate on a summary judgment motion. The motion judge found that many of the appellant’s claims could not succeed as a matter of law. He furthermore found that the appellant had not presented any evidence in support of most of her claims, and that the evidence she did present was neither credible nor reliable.
[4] The appellant has not identified any reversible error in the motion judge’s reasoning. He did not make any legal errors or any palpable and overriding errors of fact or mixed fact and law. This ground of appeal accordingly fails.
[5] Second, the appellant contends that the motion judge should not have granted the summary judgment motion without ordering examinations for discovery and a summary trial. This argument lacks merit. The motion judge determined that he could reach a fair and just determination on the merits of the action on the record before him. In particular, he found that the appellant’s affidavits contained virtually no details to support her conclusory assertions; her allegations were implausible and inconsistent; and they were contradicted by evidence that he found reliable and credible. We see no error in his reasoning.
[6] Third, the appellant contends that the motion judge denied her procedural fairness by ordering that the parties must attend the motion hearing in person and then by holding the hearing when she failed to attend. As held in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, at para. 21, the content of procedural fairness is to be decided in the specific context of each case. In the context of this case, we do not agree that the motion judge’s conduct of the proceeding resulted in any unfairness.
[7] The appellant’s initial statement of claim was issued in February 2017. Over the next six years, she filed two fresh as amended statements of claim, to which the respondent was compelled to respond with its own amended pleadings. The respondent served its notice of motion for summary judgment in May 2022. Cross-examinations on affidavits filed by the parties took place in September 2022. In November 2022, the motion judge set a hearing date of June 9, 2023 for the respondent’s motion for summary judgment, which was expected to take a full day.
[8] On May 29, 2023, at a case conference convened at the appellant’s request, she requested an adjournment of the motion hearing date so that she could conduct examinations for discovery. After considering the parties’ written and oral submissions on the issue, the motion judge denied the adjournment request and directed that the June 9, 2023 hearing date was peremptory on the appellant.
[9] After rendering his ruling on the adjournment request, the motion judge asked the parties for submissions on the mode of hearing for the summary judgment motion. After hearing the parties’ submissions, he ordered an in-person hearing. The appellant offered a litany of reasons why she could not attend in person, none of which the motion judge found compelling.
[10] A judge has broad discretion to manage proceedings as appropriate in any specific case. This includes the discretion to determine the mode of hearing. As the Superior Court’s Consolidated Civil Provincial Practice Direction states, “the final determination of how an event will proceed will remain subject to the discretion of the Court”. In his reasons, the motion judge explained that he determined that an in-person hearing was appropriate based on the issues raised in the summary judgment motion, the length of the hearing, the evidentiary record, the complexity of the legal issues, and difficulties he had in hearing and communicating with the appellant in a previous hearing which she had attended with audio-only Zoom.
[11] Contrary to the appellant’s submissions, she had no right to insist on a virtual hearing. The appellant had an opportunity to make submissions on the mode of hearing. The motion judge ordered an in-person hearing based on relevant considerations. His decision was not unfair to the appellant, in particular in the absence of any credible evidence that she was unable to attend in person.
[12] The appellant failed to attend the motion hearing. She sent an email to the court saying that she had been told by Environment Canada and Health Canada to avoid downtown Toronto due to the health risk created by wildfire smoke. The motion judge did not believe that the appellant had received this advice. Since the hearing date was peremptory on the appellant, he proceeded with the hearing in her absence. He nonetheless considered the evidence and written argument she had filed in considering the merits of the summary judgment motion.
[13] Whether to grant an adjournment in a civil proceeding is “a highly discretionary decision, and the scope for appellate intervention is limited”: Bank of Montreal v. Cadogan, 2021 ONCA 405, at para. 8. The motion judge’s decision to proceed was based on relevant factors and was consistent with the interests of justice given the history of the litigation. The appellant did not file any evidence to substantiate her assertion that attending on June 9, 2023, would have posed a genuine health risk. The hearing date had been set six months earlier. The motion judge had already considered an earlier request by the appellant to obtain an adjournment.
[14] We conclude that the motion judge exercised his discretion reasonably, and that the appellant’s allegation of a breach of natural justice has no merit.
[15] Finally, the appellant argues that the motion judge erred in ordering her to pay $24,247.69 in costs because she is a self-represented litigant and the amount is, in her view, exorbitant.
[16] Costs are a matter of the court’s discretion pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and r. 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. This court will not intervene unless costs were fixed and awarded based on an error of principle or the amount is plainly wrong: Galganov v. Russell (Township), 2012 ONCA 410, at para. 23.
[17] The motion judge considered the outlines submitted by the parties and awarded the respondent its costs on a partial indemnity scale. Contrary to the appellant’s submissions, a self-represented litigant is not exempt from costs nor is it inappropriate for a court to order costs for work done by salaried Crown counsel: CJA, s. 131(2); Solicitor’s Act, RSO 1990, c. S.15; Ontario v. Rothmans Inc., 2012 ONSC 1804, aff’d 2013 ONCA 353. The costs awarded by the motion judge were reasonable given the volume of pleadings and evidence, lengthy cross-examinations, the causes of action asserted by the appellant, and the number of case management attendances required. This ground of appeal also fails.
[18] The appeal is accordingly dismissed with costs of $7,800 all-inclusive payable by the appellant to the respondent.
“C.W. Hourigan J.A.”
“Gary Trotter J.A.”