Court File and Parties

CITATION: Marsden v. Her Majesty the Queen, 2012 ONSC 6118

DIVISIONAL COURT FILE NO.: 459/09

DATE: 20121029

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: anne marsdEn v. her majesty the queen as represented by the minister of community safety and correctional services (office of the chief coroner)

BEFORE: Then R.S.J., Lax and Swinton JJ.

COUNSEL: Anne Marsden, in person Chris Diana, for the Respondents

HEARD AT TORONTO: October 26, 2012

E N D O R S E M E N T

[1] Mrs. Marsden in her capacity as Estate Trustee of the Estate of Eva Bourgoin has brought a motion to set aside the orders of Nordheimer J. dated July 13, 2012 and August 7, 2012 in which he dismissed her motion to amend her application for judicial review and dismissed the application as moot. He also ordered costs against her.

[2] This panel has jurisdiction to hear this motion pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Such a motion is to be brought within four days (Rule 61.16(6)). A panel will not interfere with a decision of the motions judge unless he or she has made an error of law or a palpable and overriding error of fact.

[3] This motion was not brought within the four day time limit, nor has there been any request to extend the time to bring it. That alone would be sufficient reason to dismiss this motion.

[4] On the merits of her motion, Mrs. Marsden takes the position that Nordheimer J. had no jurisdiction to hear the motion. She mistakenly believes that the panel that adjourned the application for judicial review on January 5, 2012 to allow her to bring a motion to amend the application remained seized, or that another panel should have heard her motion.

[5] As Nordheimer J. correctly stated, there is nothing in the earlier panel’s endorsement indicating that it remained seized. Motions to amend are normally heard by a single motions judge pursuant to s. 21(3) of the Courts of Justice Act. Therefore, Nordheimer J. had the jurisdiction to deal with the motion to amend.

[6] Mrs. Marsden has failed to identify any error of law made by Nordheimer J. He set out the correct principles governing the amendment of a pleading and applied them to the facts before him. After reviewing the facts and background, he concluded that “the proposed amendments do not raise any issue worthy of adjudication by this court and the continuation of these proceedings would be vexatious and an abuse of process.” We see no basis to interfere with his decision.

[7] Therefore, the motion to vary the order of Nordheimer J. is dismissed. As a consequence, there is no need to proceed with the application for judicial review, as requested, because that application has been dismissed.

[8] Mrs. Marsden shall have until November 2, 2012 to respond in writing through the Divisional Court Office to the respondents’ request for costs of $500.00. If she fails to respond, the panel will make a costs order.

Then R.S.J.

Lax J.

Swinton J.

Released: October 29, 2012