CITATION: Lin v. Rock, 2015 ONSC 1929
COURT FILE NO: CV-14-512630
DATE: 20150326
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Katherine Lin
Appellant
- and -
Dr. William Rock and Dr. William Rock Medicine Professional Corporation
Respondents
In Person
Pamela Sidey,
for the Defendants/Respondents
HEARD: March 23, 2015
Appeal from a decision of Master Dash
dated February 11, 2015
WHITAKER J.
[1] At a motion brought by the two respondents, the Master struck out portions of the appellant’s fresh as amended statement of claim, set aside the noting in default against the respondents, and ordered costs against the appellant of $2,500.
[2] This is an appeal from the Master’s decision.
[3] The issues in dispute are:
i. did the Master err in setting aside the noting in default;
ii. did the Master err in ruling that a defence on the merits was unnecessary to decide the matter;
iii. did the master err in striking parts of the fresh claim, and;
iv. what should the appropriate remedy be if an error has been made?
[4] The appellant claims $1.76 million in damages arising from sexual harassment and discrimination. This is set out in her materials in detail.
[5] On November 21, 2014 the respondents served the appellant with a notice of motion to set aside the noting in default and further, to strike the original statement of claim. The motion was returnable on February 11, 2015. On November 27, 2014 after being served with the motion to set aside the noting in default, the appellant served the respondents with a notice of motion for default judgment, returnable January 7, 2015.
[6] The parties attended the motion on January 17, 2015 before Madam Justice Frank. Justice Frank adjourned the motion and ordered costs of $350 against the appellant.
[7] On February 11, 2015 the parties appeared again before the Master. The respondents sought to to set aside the noting in default, to strike portions of the fresh claim and an order that the appellant serve an amended fresh as amended statement of claim. The Master ordered the respondents to deliver a statement of defence within 20 days of delivery of Ms. Lin’s fresh as amended statement of claim. The Master ordered costs against the appellant of $2,500.
[8] The standard of review of an appeal of a Master to a judge is the same as that of any other appeal. Questions of law are reviewed on a correctness standard and questions of fact or fact and law on a standard of palpable and overriding error. A palpable and overriding error is one that is plainly seen.
[9] Masters’ findings are entitled to deference. If this were not the case, it would undermine the certainty of outcome which is an important feature of civil litigation.
[10] The onus is on the appellant to prove that the Master made a palpable and overriding error, either in his statement of law or his findings of fact.
[11] After having reviewed the materials filed by the appellant, it is apparent that the reasoning of the appellant is difficult to discern. To the extent that the claim may be understood, the appellant on the appeal is attempting to re-argue the case on the merits as it was presented to the Master.
[12] In some detail, the Master reviewed the appellant’s statement of claim on a line-by-line basis, explaining why it was unsuitable and inappropriate in the pleading.
[13] The Master correctly identified the issues of law, addressed the necessary factual components of the appeal and turned his mind to the application of law to facts.
[14] I find that the Master made no errors in law, nor any palpable and overriding errors with respect to findings of fact and fact or law.
[15] The parties made submissions as to the issue of costs. The pleadings here border on the unintelligible. There is no basis upon which this appeal should have been brought. The plaintiff’s conduct in this litigation warrants costs to be awarded to the respondents in the appeal. The respondents had to commit significant resources in order to respond adequately to the claim. Costs payable by the appellant to the respondents are fixed, inclusive of taxes and disbursements, at $5,501.69, payable forthwith. The appeal is dismissed.
WHITAKER, J.
DATE: March 26, 2015
CITATION: Lin v. Rock, 2015 ONSC 1929
COURT FILE NO: CV-14-512630
DATE: 20150326
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Katherine Lin
Appellant
- and -
Dr. William Rock and Dr. William Rock Medicine Professional Corporation
Respondents
REASONS FOR DECISION
WHITAKER J.
Released: March 26, 2015