Canada: Lin v. Rock: Pending Motion To The SCC For Reconsideration Of Leave Does Not Constitute And Appeal Nor Prevent Courts From Making Decisions Affecting Parties

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 Lin."

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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