In its decision in Lin v. Rock, 2016 ONSC 1638 the Ontario
Divisional Court confirmed that a pending a motion to the Supreme
Court of Canada for reconsideration of its denial of an application
for leave to appeal does not constitute a further appeal, nor does
it prevent a court from making decisions affecting the rights of
the relevant parties.
In this case, Master Hawkins had granted a motion by
Rock to dismiss the action on the basis that Lin had failed to
comply with interlocutory orders of the court, including the order
to pay costs. Lin did not attend the hearing of the motion to
dismiss, nor did she file material in response to the motion.
On the appeal, Lin did not dispute that she had not delivered an
amended pleading as ordered, nor did she dispute that she had not
paid the cost orders made against her. Rather, Lin took the
position that because she had brought a motion to the Supreme Court
of Canada for reconsideration of the Court's denial of her
application for leave to appeal, this request operated as an
automatic stay of the orders from which she appealed. Lin pointed
to the fact that she had recently received a Notice from the Senior
Registry Officer for the Supreme Court of Canada which advised
"that the Registrar may request a judge to make an order that
no further document relating to the proceeding be filed by
Citing Padelt v. 638506 Ontario Inc., 2010 Carswell Ont
10711 (Ont. C.A.) and Hundley v. Garnier, 2013 BCSC 380
the Divisional Court concluded that the case law "supports a
conclusion that a pending motion for reconsideration to the Supreme
Court of Canada does not constitute a further appeal or prevent the
court from making decisions affecting the rights of the parties in
proceedings before them". Given this, the Divisional Court
ruled that Master Hawkins had the jurisdiction to entertain
Rock's motion to dismiss and concluded that there was no
palpable and overriding error that would justify appellate
intervention. The appeal was therefore dismissed.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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