CITATION: Peters v. Law Society of Upper Canada et al, 2017 ONSC 1327
COURT FILE NO.: 569/16
DATE: 20170228
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Elsie Eugina Peters, Applicant
AND:
Law Society of Upper Canada and Danielle Smith, Respondents
BEFORE: Kiteley J.
COUNSEL: Self-represented Applicant
Molly Luu, counsel for the Defendants
HEARD: In writing
ENDORSEMENT
Introduction
[1] The plaintiff seeks leave to appeal from the orders of Firestone J. dated November 21 and 22, 2016. In the November 21 order, Firestone J. adjourned the matter to November 22. In the November 22 order Firestone J. directed that the defendants bring their motion before a Master to set aside the noting in default on notice to the plaintiff in accordance with the Rules of Civil Procedure. He also ordered that in light of that motion to set aside, the plaintiff’s motion for default judgment scheduled for December 5, 2016 be vacated pending the determination of the defendants’ motion. He reserved costs of the attendances on November 21 and November 22 to the Master hearing the motion to set aside the noting in default.
[2] The plaintiff was called to the bar in 2006. She alleges that in 2011, a panel of the Law Society suspended her “without time line”. Ms. Smith was the lawyer who prosecuted the case on behalf of the Law Society. The plaintiff issued the statement of claim on August 25, 2016 in which she claims “general damages for Instructional and Prosecutorial Breach of Conflict of Interests 75,000,000.00; special damages in such sum as may be proven; further claims damages for loss of past and future income and loss of earning capacity” and other claims.
[3] The affidavit of service indicates that both defendants were served on August 26, 2016. Counsel for the defendants served a notice of intent to defend dated September 13, 2016. In a letter dated September 21, 2016, counsel for the defendants referred to a telephone call that she had initiated that day which indicates that Ms. Peters had hung up on her. In her affidavit, Ms. Peters explained that she had dropped her cell phone and the call was interrupted and when she called back the number, the person who answered could not identify who had initiated the call. I need not address that conflict in this motion.
[4] In that letter dated September 21, 2016, counsel indicated that she would be bringing a motion to dismiss the action and asked about Ms. Peter’s availability to attend motion scheduling court on 4 suggested dates. She pointed out that in light of the motion to dismiss the action she would not be serving a statement of defence.
[5] On September 26, 2016 Ms. Peters noted the Law Society in default and on October 18, she noted Ms. Smith in default.
[6] As arranged by counsel for the defendants, Ms. Peters and counsel attended Civil Practice Court on November 21, 2016. On that occasion, Firestone J. made this endorsement:
This matter is adjourned to CPC court on November 22, 2016 before me to advise whether one or both defendants have been noted in default and to address the plaintiff’s default judgment motion currently scheduled for December 5, 2016; in light of any motion that may be brought to set aside the noting of default.
[7] On November 22, 2016, Firestone J. made this endorsement:
The defendants were noted in default: the Law Society on September 22, 2016 and the Defendant Smith on October 18, 2916. The defendants wish to bring a motion to set aside the noting in default. This is to be done on notice to the Plaintiff per the Rules and heard before a Master. In light of this, the Plaintiff’s motion for default judgment scheduled for December 5, 2016 is vacated pending the determination of the defendants motion.
The costs thrown away of both yesterday and today attendance before me is reserved to the Master hearing the motion to set aside the noting in default.
Motion for Leave to Appeal
[8] The motion for leave to appeal is dated November 29, 2016 and is accompanied by Ms. Peters’ affidavit sworn October 19, 2016 which appears to have been served in support of her motion for default judgment. It appears that Ms. Peters served her motion record and factum and book of authorities on December 4 and filed it on January 5, 2017.
[9] Ms. Peters’ factum refers to rules 21.02, 21.01, 19.02 and 19.04 but makes no reference to rule 62.02.
[10] In the factum filed on behalf of the defendants, counsel has included submissions on rule 62.02(4)(a) and (b).
[11] Ms. Peters delivered a reply factum in which she indicated that “the only issue to be determine [sic] is whether the Judge hearing the motion has been given good reasons to doubt the correctness of Justice Firestone Order vacating the notice of motion for Judgment without giving the Appellant an opportunity to respond?” She goes on to rely on procedural fairness cases. Following several pages, Ms. Peters asserted that “therefor, it is a good and valid reason to doubt the correctness of Justice Firestone’ Order”.
[12] On the basis of the reply factum, I assume that Ms. Peters takes the position that leave should be granted pursuant to rule 62.02(4)(b).
Analysis
[13] The test for granting leave to appeal under rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one.
[14] Under Rule 62.02(4)(b), the moving party must meet two criteria: that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. On the second criterion, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice.
[15] As indicated above, Ms. Peters did not provide an affidavit in support of the motion for leave; she attached the affidavit on which it appears she intended to rely in support of her motion for default judgment. Counsel for the defendants pointed out that Ms. Peters’ factum contains statements that are not contained in any affidavit and are therefore not evidence before me. I agree that to the extent that such statements are made in her factum, I should disregard them.
[16] The order made November 21 did not impact on the substantive rights of any of the parties and does not warrant leave to appeal.
[17] To consider the November 22 order, I refer to the Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region (effective July 1, 2015) which announced the institution of the Civil Practice Court (CPC) designed to serve the following purposes:
(a) To curtail the motions culture in Toronto and to ensure that motions and applications that are ready to proceed can be heard on a timely basis.
(b) To permit the CPC judge to identify cases, at any stage, which require a degree of case management. Case management, most typically, will only be invoked in complex cases or where long motions are involved.
(c) To assist in the orderly hearing of long motions, long applications and any summary judgment motion. Parties will be encouraged to submit agreed upon timetables, and where necessary, case conferences will be scheduled in advance. The CPC judge will consider the option of directing long motions to the trial list.
(d) To create a judicial mechanism whereby the CPC judge can assign cases in need of the courts intervention before other available judges.
[18] Rule 1.04 is also relevant:
(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
[19] And rule 1.05 which states as follows:
When making an order under these rules the court may impose such terms and give such directions as are just.
[20] In his order dated November 22, Firestone J. did what is contemplated by the Rules of Civil Procedure and by the Practice Direction. He did what is expected to be done at Civil Practice Court namely he exercised his discretion to give directions that are proportionate to the importance and complexity of the issues at that time and accordingly, he scheduled the dates for events in an orderly manner so as to maximize the use of available court and judicial resources. A procedural order such as the order made November 22 that is designed to control the process and to ensure that proper steps are taken does not raise “good reason to doubt correctness”. In this case there was no point in allowing the plaintiff’s motion for default judgment to proceed before the motion by the defendants to set aside the noting in default. I am not persuaded that there is good reason to doubt the correctness of that order.
[21] In her reply factum, Ms. Peters does not make submissions on the second criterion in the test pursuant to rule 62.02(4)(b). I have no submission from her as to how the proposed appeal involves matters of importance that go beyond the interests of these parties and no submission that the appeal, if leave is granted, involves questions of general or public importance relevant to the development of the law and administration of justice. However, it is apparent from the record that the circumstances of this case affect only the parties.
[22] Ms. Peters has failed to meet both of the criteria in rule 62.02(4)(b).
Costs
[23] Counsel for the defendants provided a brief as to costs in which she took the position that Ms. Peters should be ordered to pay substantial indemnity costs in the amount of $1,942.47. Counsel provided a costs outline that indicated that full indemnity costs were in the amount of $3,001.28; substantial indemnity costs at 90% of full indemnity were in the amount of $2,705.11; and partial indemnity costs at 60% of full indemnity were in the amount of $1,816.59. The costs outline also indicated that the costs to be paid by LawPro equalled $2,158.30 and 90% of that is $1,942.47.
[24] Ms. Peters then filed a significant brief in which she attached documents from her earlier motion record and copies of decisions on which she relied. In her costs submissions she says in paragraph 8 that “if for any reasons [sic] she is not successful that any cost against her be satisfied at the end of the proceeding”. At paragraph 20 she says that if leave is granted, then costs of the leave motion should be left to the judge hearing the appeal. She provided a bill of costs that reflected her rate at $500 per hour and that totalled $18,100.
[25] As indicated, Ms. Peters did not prepare an affidavit in support of the motion. Her initial factum did not address rule 62.02(4) and for that reason it was largely irrelevant and contained assertions that were not found in evidence. Her reply factum superficially referred to the first criterion in rule 62.02(4)(b) and made no reference to the second criterion.
[26] On the other hand, counsel for the defendants prepared a factum addressing both rule 62.02(4)(a) and (b) which was helpful in arriving at the outcome of the motion. The defendants were successful and are entitled to costs. However the timing of the payment of the costs will be reserved to the Master hearing the motion to set aside.
[27] Based on the factum filed in this motion for leave there remains issues about whether it was proper for Ms. Peters to have noted the defendants in default. Those are issues that will be addressed in the motion by the defendants to set aside the noting in default. I am awarding costs solely on the basis of success not on the cross-allegations of improper conduct. And the amount is modest to reflect that the motion was submitted and heard in writing and no attendance was required.
ORDER TO GO AS FOLLOWS:
[28] The motion by the plaintiff for leave to appeal the orders made by Firestone J. dated November 21, 2016 and November 22, 2016 is dismissed.
[29] The plaintiff shall pay costs in the amount of $1000.00 to the defendants for this motion for leave to appeal.
[30] The Master hearing the motion to set aside the noting in default shall decide when the costs ordered in paragraph 29 shall be paid.
Kiteley J.
Date: February 28, 2017