



COURT OF APPEAL FOR ONTARIO

CITATION: Montague v. Toronto Transit Commission, 2019 ONCA
    57

DATE: 20190128

DOCKET: M49684

Rouleau, Pardu and Benotto JJ.A.

BETWEEN

Yvonne Montague

Plaintiff (Appellant)

and

Toronto Transit Commission

Defendant (Respondent)

Yvonne Montague, acting in person

Andrew Davidson and Alexandra Vaiay, for the respondent

Heard in writing

REASONS FOR DECISION

[1]

The moving party requests reconsideration pursuant to r. 59.06(2) of
    this courts order dated September 21, 2018 dismissing her motion for leave to
    appeal from an order of the Divisional Court.

[2]

The Divisional Court dismissed the moving partys appeal from the
    dismissal after trial of her claim for damages. Her claim related to a fall she
    claimed was caused by a negligent Toronto Transit Commission (TTC) driver.

[3]

In her notice of motion, the moving party advances two grounds. The
    first is that fresh evidence contained in the affidavit she has tendered shows
    that her appeal ought to have been allowed. The second is her allegation that
    the foreman of the jury at her trial failed to divulge that he had been a
    witness on behalf of the TTC in a recent civil proceeding and could not,
    accordingly, fairly act as a juror in her case.

[4]

The fresh evidence contained in the moving partys affidavit puts
    forward allegations and information that, from our review, was virtually all before
    the Divisional Court and was addressed in its reasons. In effect, the moving
    party seeks a rehearing of the appeal she had advanced and that was rejected by
    the Divisional Court.

[5]

With respect to the allegation concerning the foreman, no evidence was
    tendered to support such a serious allegation. The moving party simply alleges
    that a witness in the case of
Ahmed v. Toronto Transit Commission
,
    2015 ONSC 4130, was the jury foreman in her matter. Nothing other than the
    appellants subjective belief that the jury foreman looked to be the same man
    whom she saw testifying in
Ahmed
was advanced in support of this
    claim. This concern was not raised at trial. It was first raised in the
    Divisional Court and rejected by that court.

[6]

The moving party has not raised any new issues that raise doubt as to
    the correctness of the Divisional Courts decision or of this courts denial of
    the leave to appeal application.

[7]

This courts jurisdiction to set aside or vary its own orders pursuant
    to r.  59.06(2) is limited to exceptional circumstances. These have not
    been made out in this case. The motion is therefore dismissed.

Paul Rouleau J.A.

G. Pardu J.A.

M.L. Benotto J.A.


