



COURT OF APPEAL FOR ONTARIO

CITATION:
    Baines v. Hehar, 2013 ONCA 469

DATE: 20130709

DOCKET: M42150 (M42069)

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Eleanor Baines

Applicant/Plaintiff

and

Navdeep S. Hehar and Manmohan S. Hehar

Respondents/Defendant

Eleanor Baines, in person

Fergal Murphy and David L. Silverstone, for the
    respondents

Heard: July 4, 2013

ENDORSEMENT

[1]

The applicant moves for an order setting aside, varying or amending the
    order of Hoy A.C.J.O. dated January 23, 2013, dismissing the applicants motion
    for an extension of time to seek leave to appeal from the decision of the
    Divisional Court, dated November 27, 2012.  That decision dismissed the applicants
    appeal from a jury verdict in a personal injury action arising from a motor
    vehicle accident.

[2]

In her Amended Notice of Motion, the applicant also requests an order:
    (1) compelling the respondents to produce an article that she says was used by
    one of the experts who testified at trial when preparing his expert report and
    permitting her to use the article as fresh evidence on appeal if her leave to
    appeal motion is granted; and (2) setting aside the Divisional Courts costs
    award in favour of the respondents on the basis that the respondents factum at
    the appeal hearing before the Divisional Court was served late, contrary to the
Rules of Civil Procedure
.

[3]

Notwithstanding the appellants thoughtful and articulate submissions,
    we see no basis for interfering with Hoy A.C.J.O.s discretionary order
    declining to grant an extension of time.  The only issue before this court is
    whether Hoy A.C.J.O. erred in her discretionary ruling.  In our view, she did
    not.

[4]

In her reasons, Hoy A.C.J.O. indicated that, on the basis of all the
    materials filed on the extension motion, the issues sought to be raised on
    appeal by the applicant were matters of significance to the parties only.  The
    applicant challenges this conclusion, arguing that the proposed issues on
    appeal are relevant generally to the conduct of civil litigation by
    self-represented litigants, the determination of which will assist the
    administration of justice, including by providing clarification of the
    obligations of counsel and the court to self-represented litigants.

[5]

We agree with Hoy A.C.J.O.s assessment of the import of the issues
    sought to be raised on appeal.  The applicants real objective is to reverse
    the jurys damages awards, because the applicant regards them as too low, and
    the trial judges associated ruling on the threshold for non-pecuniary
    damages.  These are matters particular to the interests of the litigants in
    this case.

[6]

Many of the grounds sought to be raised by the applicant relate to the
    conduct of the trial, including the trial judges evidentiary rulings.  These
    grounds were or could have been pursued by the applicant before the Divisional
    Court.  To the extent that the grounds were dealt with by the Divisional Court,
    we see no error in that courts analysis or disposition of them.  To the extent
    that some identified grounds were not dealt with by the Divisional Court, they
    appear to be issues raised before and dealt with by the trial judge in the
    proper exercise of his discretion.  There is no basis on which to allow a
    second appeal to this court in respect of those issues.  Further, we see no
    merit to the grounds raised by the applicant in respect of the appeal hearing
    before the Divisional Court.

[7]

In the result, the applicant has failed to identify any error by Hoy
    A.C.J.O. warranting intervention by this Panel.

[8]

With respect to the applicants request for an order compelling
    production of a document allegedly utilized by an expert who testified at trial
    (Dr. A. Upton), this is a request that properly should have been made at trial
    or pursued with the expert on cross-examination.  It is irrelevant to the
    challenge to Hoy A.C.J.O.s order, now before us.  We note that this production
    request does not appear to have been made before the Divisional Court or Hoy
    A.C.J.O.

[9]

Finally, we see no reversible error in the Divisional Courts costs
    award, even if an extension of time to seek leave to appeal from that award
    were granted.  We note that the respondents have undertaken before this court
    not to enforce this outstanding costs award.  In any event, the applicant has
    identified no error in principle concerning the challenged costs award and we
    see no basis to conclude that the award is clearly wrong.  Accordingly, no
    purpose would be served by granting an extension of time in which to seek leave
    to appeal from the Divisional Courts costs award.

[10]

For
    the reasons given, this motion is dismissed.  The respondents, quite properly
    in our view, do not seek their costs of this motion.  Accordingly, we make no
    order for costs.

J.C. MacPherson J.A.

E.A. Cronk J.A.

Paul Rouleau J.A.


