COURT FILE NO.: 134/03
DATE: 20030311
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MARIZEL SORIANO, VIRGINIA SORIANO, MATILDE BANCUD, JESSE BANCUD, FE BALUBAL, DOMINADOR BALUBAL and MARJORIE SORIANO, and JEZEL SORIANO by their Litigation Guardian Marizel Soriano
Plaintiffs/Respondents
- and -
GREGORY LABERAKIS
Defendant/Appellant
Charles Wagman, for the Plaintiffs/ Respondents
Gerry J. Gill, for the Defendant/Appellant
HEARD: March 11, 2003
ARCHIE CAMPBELL J.: (Orally)
[1] The facts are set out in the moving party's factum and the two motion records. The defendant appeals the order of the Master under Rule 7.04(1)(b) dismissing the application to appoint a litigation guardian.
[2] There is an argument, whether or not the Master's decision under Rule 7.04(1)(b) is final, in which case the appeal is to a single judge of the Divisional Court pursuant to s.19(1)(c) of the Courts of Justice Act or interlocutory, in which case the appeal is to a judge of the Superior Court under s.17(a).
[3] Whatever the appeal route may be, counsel agree that as a Superior Court judge assigned to Divisional Court Motions, I have jurisdiction to hear and determine the motion to stay.
[4] The appeal, whether the order is final or interlocutory, will as a matter of judicial scheduling proceed on a Divisional Court Motions list before a judge sitting either as a single judge of the Divisional Court or as a Superior Court judge. It is unnecessary at this stage to determine which jurisdictional hat the judge will wear. See Anthes Equipment v. Wilhelm Layher (1986) 1986 2755 (ON SC), 53 O.R. (2d) 435. Because the final/interlocutory question may affect time limits to appeal, subsequent appeal routes and possibly the standard of review, that question may be raised before the judge hearing the appeal.
[5] As for the merits of the stay, the psychiatric letter is vague. It is more noteworthy for what it omits than for what it asserts. It does not say when any examination took place. Although it expresses "concern" about a number of issues, conspicuously absent is any psychiatric opinion that the appellant is unable to instruct counsel, appreciate the consequences of decisions or understand the proceedings or information relevant thereto. The solicitor's affidavit adds nothing of substance.
[6] Although the applicant need only show there is a serious issue to be tried on the appeal, he has not done so. The evidence in support of his position is unsatisfactory and there is no apparent error in the order under appeal. Although the merits are for the court hearing the appeal, its viability is far from clear on this motion to stay.
[7] The appellant has demonstrated no irreparable harm.
[8] The entire history of this matter is one of unacceptable procedural maneuvering, by the applicant and earlier counsel, simply in order to create delay. The balance of convenience therefore favours the respondent.
[9] Because there is no serious issue to be tried, no demonstration of irreparable harm, and the balance of convenience favours the respondent, the motion for a stay is dismissed.
[10] Costs to the respondent fixed at $1,500, payable forthwith.
Date of Reasons for Judgment: March 11, 2003
Date of Release: March 25, 2003
COURT FILE NO.: 134/03
DATE: 20030311
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MARIZEL SORIANO, VIRGINIA SORIANO, MATILDE BANCUD, JESSE BANCUD, FE BALUBAL, DOMINADOR BALUBAL and MARJORIE SORIANO, and JEZEL SORIANO by their Litigation Guardian Marizel Soriano
Plaintiffs/Respondents
- and -
GREGORY LABERAKIS
Defendant/Appellant
ORAL REASONS FOR JUDGMENT
ARCHIE CAMPBELL J.
Date of Reasons for Judgment: March 11, 2003
Date of Release: March 25, 2003