COURT FILE NO.: CV-19-79
DATE: 2020/12/01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Maria Piccone, Plaintiff
AND
Dr. Adrian S. Marko D.D.S., Defendant
BEFORE: The Honourable Justice P. Kane
COUNSEL: Ms. Piccone, both Self-Represented and by Louis A. Piccone
A. Michel, for the Defendant
HEARD: November 13 and 18, 2020
DECISION FOR leave to appeal
[1] The plaintiff by motion seeks leave to appeal the August 19, 2020 decision of Charbonneau J. (the “Order”) to the Divisional Court.
[2] Argument of this motion for leave to appeal proceeded by telephone conference.
Background
[3] Ms. Piccone, commenced this proceeding in the Superior Court in L’Orignal on November 14, 2019, by Statement of Claim in which she seeks compensatory and punitive damages for alleged breach of contract, negligence and battery by Dr. Marko as her treating orthodontist between February 2014 and March 2019 for his diagnosis and treatment of her teeth, her mouth cavity and her person.
[4] That November 14, 2019 Statement of Claim is signed by the plaintiff’s father, Louis A. Piccone as “Advocate for Maria Piccone”.
[5] The plaintiff was a minor until attaining 18 years of age on February 22, 2020.
[6] The material on this motion for leave to appeal indicates that Mr. Piccone is or was a lawyer in the United States but is not so qualified in the Province of Ontario.
[7] Dr. Marko defended the action by Statement of Defence dated January 23, 2020. That defence includes allegations that:
a. the plaintiff’s claim was commenced after expiration of the relevant limitation period pursuant to the Limitations Act, 2002, S.O. 2002, c. 24; and
b. the plaintiff, who was then a minor, must pursuant to r. 15.01 of the Rules of Civil Procedure, R.R.O., 1990, Reg. 194 (“Rules”), be represented by a lawyer and not by her father Louis A. Piccone, who despite his identification in the Statement of Claim as “Advocate”, is not a lawyer in the Province of Ontario.
Order For Which Leave to Appeal is Sought
[8] Counsel for the defence advised Mr. Piccone prior to the return of this motion in several emails that:
a. the Statement of Claim failed to indicate the level of damages claimed;
b. he was not entitled to represent his plaintiff daughter in this proceeding in the Superior Court of Ontario; and
c. the defendant would if necessary, bring a motion to address such issues.
[9] Dr. Marko brought a motion in L’Orignal on August 19, 2020 for an order:
a. prohibiting Mr. Piccone from representing the plaintiff in this action; and
b. striking the Statement of Claim as such pleading did not indicate the amount of the plaintiff’s claim as required under r. 25.06(9) requirement that it state the level of damages claimed.
[10] The Order and endorsement of the court on Dr. Marko’s above motion state that:
a. Mr. Piccone is not authorized and is prohibited to act for the plaintiff as her legal representative or advocate; and
b. the plaintiff may within 20 days amend her Statement of Claim to state the amount of damages being claimed, failing which the Statement of Claim will be deemed struck.
[11] The Order and such endorsement are dated August 19, 2020. That Order was issued and entered on August 28, 2020.
Motion for Leave to Appeal the Order
[12] The plaintiff’s Notice of Motion for leave to appeal the Order to the Divisional Court was filed and returnable in the Superior Court in L’Orignal and proceeded on November 13, 2020 before a single judge of this court and not before a panel of the Divisional Court.
[13] The plaintiff’s Notice of Motion for leave to appeal the Order to the Divisional Court states that:
a. “The Plaintiff’s Advocate will make a motion …”;
b. the motion is for: “(a) an order allowing Louis A. Piccone to file an interlocutory appeal of the August 19, 2020 order (J. Charbonneau) of the L’Orignal Division of the Ontario Superior Court of Justice denying non-attorney Mr. Piccone the ability to represent his daughter before this Court when the plain language of the Law Society by-laws allow him to do so, and (b) such further and other relief as counsel may advise and” the Court may permit.
c. Mr. Piccone as the father of the plaintiff is permitted to represent her in this proceeding pursuant to the Law Society Act, R.S.O. 1990, c. L.8 and the Law Society’s By-Laws;
d. the Order incorrectly interpreted such legislation, such By-Laws and the rights of parties to be represented in proceedings such as this; and
e. the proposed appeal raises matters of general importance to non-attorney practice and access by parties to Ontario Courts.
[14] The parties each filed extensive material on this motion for leave to appeal.
[15] Mr. Piccone commenced argument of this motion for leave to appeal but was prevented from completing submissions as the court stated that:
a. he is a not a party to this proceeding and therefore lacked standing to bring the motion for leave to appeal on his own behalf; and
b. the Order for which leave to appeal is sought, prohibits him from representing the plaintiff on such motion.
[16] Ms. Piccone thereupon advised the court that she relied upon the materials filed in support of the motion for leave to appeal and made no other submissions.
Analysis
[17] Dr. Marko opposed this motion for leave to appeal on the following grounds:
a. he challenged the jurisdiction of this court as the Order is interlocutory in nature as it determined a collateral matter, did not dispose of or determine an matter in issue in the proceeding and a motion for leave to appeal an interlocutory order is to be determined by a panel and not a single judge of the Divisional Court pursuant to R. 62.02(1) and 19(1) (b) of the Courts of Justice Act;
b. the plaintiff’s motion for leave to appeal the Order is out of time pursuant to R. 61.03(1) as it was served on September 8, 2020, which is beyond the 15-day time limit from August 19, 2020;
c. there are no decisions in conflict to the Order in Ontario or elsewhere; and
d. the Order was correctly decided.
Nature of the Order
[18] Mr. Piccone submits that the Order is both an interlocutory order and a final order as it terminated his right to represent or act as advocate of his plaintiff daughter in this proceeding.
[19] The Order is interlocutory as it is limited in determining that Mr. Piccone was not authorized and was prohibited from acting as the plaintiff’s legal representative or advocate and in granting the plaintiff leave to amend her Statement of Claim.
[20] The Order does not determine any issue as to the plaintiff’s claims of negligence, breach of contract or battery by and against Dr. Marko, which issues remain undetermined: Hendricks v. Killo, (1932) 1932 CanLII 123 (ON CA), O.R. 675 (Ont. C.A.), p. 678 and Waldman v. Thomson Reuters Canada Limited, 2015 ONCA 53, at para. 22.
[21] The following legislation and Rules are relevant to the issues on this motion.
The Courts of Justice Act, R.S.O. 1990, c. C.43 (the “Act”).
19 (1) An appeal lies to the Divisional Court from,
(a) a final order of a judge of the Superior Court of Justice, as described in subsections (1.1) and (1.2);
(b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court;
21 (1) A proceeding in the Divisional Court shall be heard and determined by three judges sitting together. R.S.O. 1990, c. C.43, s. 21 (1).
(2) A proceeding in the Divisional Court may be heard and determined by one judge where the proceeding,
(a) is an appeal under clause 19 (1) (c);
(b) is an appeal under section 31 from a person referred to in subsection 24 (2) presiding over the Small Claims Court; or
(c) is in a matter that the Chief Justice of the Superior Court of Justice or a judge designated by the Chief Justice is satisfied, from the nature of the issues involved and the necessity for expedition, can and ought to be heard and determined by one judge. R.S.O. 1990, c. C.43, s. 21 (2); 1996, c. 25, s. 9 (14); 2017, c. 2, Sched. 2, s. 2.
(3) A motion in the Divisional Court shall be heard and determined by one judge, unless otherwise provided by the rules of court. R.S.O. 1990, c. C.43, s. 21 (3).
(4) A judge assigned to hear and determine a motion may adjourn it to a panel of the Divisional Court. R.S.O. 1990, c. C.43, s. 21 (4). [Emphasis added]
[22] Sections 21(3) and (4) are applicable to the plaintiff’s present motion for leave to appeal the Order, subject to the following requirements in the Rules.
RULES OF CIVIL PROCEDURE
MOTION FOR LEAVE TO APPEAL
62.02 (1) Leave to appeal to the Divisional Court from any of the following orders shall be obtained from a panel of that court in accordance with this rule:
An interlocutory order of a judge of the Superior Court of Justice, under clause 19 (1) (b) of the Courts of Justice Act.
A final order of a judge of the Superior Court of Justice for costs, under clauses 19 (1) (a) and 133 (b) of the Courts of Justice Act. O. Reg. 536/18, s. 4 (1). [Emphasis added]
[23] The plaintiff seeks leave to appeal the Order which is interlocutory for the above reasons.
[24] Rule 62.02(1) 1., constitutes an exception to the right of a single judge pursuant to s. 21(3) of the Act to hear and determine a motion in the Divisional Court.
[25] This motion for leave to appeal this Interlocutory Order must therefore be determined pursuant to R. 62.02(1) 1 by a panel of three judges of the Divisional Court, in writing and not by a single judge of that court: R.. 62.02(1) 1 and (2); Zhang v. Guo, at paras. 18 and 19 and Loiselle v. Loiselle, 2018 ONSC 6688, at paras. 8 and 9.
[26] As this court lacks jurisdiction to decide the plaintiff’s motion for leave to appeal, it similarly lacks jurisdiction to determine Dr. Marko’s other above grounds in opposing this motion for leave.
[27] The plaintiff’s motion for leave to appeal the Order accordingly is adjourned for determination before a panel of the Divisional Court pursuant to s. 21(4) of the Act.
Costs
[28] Dr. Marko seeks costs for his attendance upon the return of this motion for leave to appeal the Order, as his counsel advised the plaintiff on several occasions prior to November 13, 2020, that this motion should be before a panel and not a single judge of the Divisional Court. The defendant seeks costs on a substantial or partial indemnity scale in the amount of $3,626 and $2,417, respectively.
[29] Dr. Marko was successful in his argument that this court lacked jurisdiction to determine this motion but was unsuccessful in seeking the dismissal of this motion for that reason or the other grounds argued due to the lack of jurisdiction.
[30] The costs claimed are not restricted to today’s attendance on this motion. They include the defendant’s cost for preparation of his responding materials including law and factum. Most of that work has not been wasted and will be used upon the return of this motion before the Divisional Court panel which will decide this motion for leave.
[31] The plaintiff’s arguments on this motion were not accepted. The plaintiff did not seek an adjournment of her motion to a panel of the Divisional Court.
[32] The defendant incurred unnecessary costs in being required to attend and argue today as Mr. Piccone refused to heed the defendant’s prior cautions that this motion today was returnable in the wrong court and should be scheduled before a panel of the Divisional Court.
Conclusion
[33] In balancing the above factors, Dr. Marko is awarded $900 costs on a partial indemnity scale, inclusive of disbursements and tac, against Mr. Louis Piccone, a non-party to this proceeding as this motion was brought to determine his right to act as the representative of his plaintiff daughter.
[34] Such award of costs against Mr. Piccone is payable by January 15, 2021.
The Honourable Justice P. Kane
Date: December 1, 2020
COURT FILE NO.: CV-19-79
DATE: 2020/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Maria Piccone, Plaintiff
AND
Dr. Adrian S. Marko D.D.S., Defendant
BEFORE: The Honourable Justice P. Kane
COUNSEL: Self-Represented and by Louis A. Piccone, Counsel for the Plaintiff
A. Michel, for the Defendant
Decision for leave to appeal
Justice P. Kane
Released: December 1, 2020