ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-09-5805-ML
DATE: 2015-07-22
B E T W E E N:
Bonnie McDonald
Self-Represented
- and -
Regional Municipality of Peel
Daryn M. Jeffries, for the Defendant
HEARD: July 13, 2015
RULING
M. J. Donohue, J.
[1] This motion for leave to appeal was heard by way of written submissions.
[2] The plaintiff seeks leave to appeal to the Divisional Court from a motion involving the interlocutory order of Fragomeni, J. dated May 13, 2015. He dismissed her motion seeking the court to appoint an independent expert pursuant to Rule 52.03.
[3] In her statement of claim, the plaintiff claimed damages for her mental condition as a result of the defendants’ alleged actions. The defendant obtained an order to allow them to have the plaintiff assessed by a psychiatrist, Dr. Woodside.
[4] The plaintiff, who is self-represented, sought to have her own psychiatric report, but asked the court to order and fund the report pursuant to Rule 52.03.
[5] Initially the motion was returnable on September 10, 2014. Justice Fragomeni adjourned the motion to allow the plaintiff to obtain further information for the court, specifically, a letter from the expert stating what remuneration would be required, what the report would entail and their acceptance to act as a court-appointed expert.
[6] The matter was to be heard December 18, 2014, but the plaintiff requested a further adjournment.
[7] Justice Fragomeni heard the plaintiff’s motion on April 23, 2015, and ruled that the evidentiary record she provided did not provide the information the court needed to consider whether Rule 52.03 should be invoked. He affirmed that the plaintiff remained entitled to obtain her own expert report.
[8] I note that Justice Fragomeni also referred to the decision of Philips et al. v. Ford Motor Co. of Canada Ltd. et al., 1971 389 (ON CA), [1971] O.J. No. 1564 (QL) regarding court appointed experts. He cited paragraph 61, “A Court should not appoint an expert to make independent inquiries into the matters before it for the purpose of supporting or refuting the position or theory of one of the parties.”
Test for Leave to Appeal to Divisional Court
[9] The test for granting leave to appeal is set out under Rule 62.02(4) and is not easily granted. Leave shall not be granted unless either Rule 62.02(4)(a) or Rule 62.02(4)(b) are satisfied. Each involves a two-part test and in each case, both aspects of the two-part test must be met before leave is granted.
[10] Rule 62.02(4)(a) allows for leave where there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted.
[11] Rule 62.02(4)(b) allows for leave where there appears, to the judge hearing the motion, good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[12] In considering whether there is good reason to doubt the correctness of the decision the court is to “ask itself whether the correctness of the decision is open to “very serious debate” and, if so, is it a decision that warrants resolution by a higher level of judicial authority”. See Brownhall v. Canada 2006 7505 (ON SC), 80 O.R. (3d) 91 para 30.
Analysis
[13] The plaintiff cited many cases but none that were relevant to the issue of court appointed experts pursuant to Rule 52.03 nor that conflicted with this decision. The plaintiff, therefore, does not have grounds for leave to appeal under Rule 62.02(4)(a).
[14] The plaintiff made unspecific arguments citing Charter rights and publicly funded counsel but relied on criminal cases and child protection cases where the state is involved. These are distinguishable from civil remedies where private parties seek claims between themselves.
[15] I do not doubt the correctness of the decision as it is reasoned and find that the matter in issue is only of importance to this particular litigant as she seeks the court to find and fund the evidence in her case. As stated by Justice Bellamy in Bell Express Vu Ltd Partnership v. Morgan (2008) 67 CPC (2d) 263 (Div. Ct.) at para 3, the issues in this case, “Do not transcend the immediate interests of the specific facts of this case”. The plaintiff, therefore, does not have grounds for leave to appeal under Rule 62.02(4(b).
Conclusion
[16] Accordingly, leave to appeal is denied.
M. J. Donohue, J.
Released: July 22, 2015
COURT FILE NO.: CV-09-5805-ML
DATE: 2015-07-22
SUPERIOR COURT OF JUSTICE – ONTARIO
Bonnie McDonald
Plaintiff
and –
Regional Municipality of Peel
Defendant
RULING
M.J. Donohue, J.
Released: July 22, 2015