Docket: CACV2223 Iwona Kowalczyk Appellant - v. -, 2012 SKCA 70

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 70 Date: 20120703 Between: Docket: CACV2223 Iwona Kowalczyk Appellant - and - Saskatchewan Government Insurance Respondent Docket: CACV2252 Iwona Kowalczyk Appellant - and - Saskatchewan Government Insurance Respondent Coram: Jackson, Ottenbreit and Herauf JJ.A. Counsel: Iwona Kowalczyk on her own behalf

Heather Laing for the respondent Application: From: 2012 SKCA 12 Heard: June 13, 2012 Disposition: Dismissed Written Reasons: July 3, 2012 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Herauf Ottenbreit J.A. [ 1 ] This is an application pursuant to s. 20(3) of The Court of Appeal Act, 2000 , S.S. 2000, c. C-42.1 to discharge or vary the February 16, 2012 order of Lane J.A. of this Court sitting in chambers.

The order dismissed the application of Iwona Kowalczyk to extend the time within which to appeal the trial judgment of Dovell J. dated May 9, 2011. At the application before Lane J.A., Ms. Kowalczyk also sought leave to appeal the trial decision to this Court but s. 194 of The Automobile Accident Insurance Act , R.S.S. 1978, c.

A-35 (the “ AAIA ”) allows appeals from Queen’s Bench decisions on points of law as of right and leave is unnecessary. [ 2 ] Section 20(3) of The Court of Appeal Act reads as follows: An order made by a judge in chambers, other than an order granting or denying leave to appeal, may be discharged or varied by the court. [ 3 ] Counsel for Saskatchewan Government Insurance (“SGI”) did not object to the application being brought under this section. [ 4 ] Ms.

Kowalczyk commenced two actions under s. 191 of the AAIA , both of which appealed the decisions of SGI, concerning five motor vehicle accidents in which she was involved and for which she sought compensation for her injuries. The two actions were consolidated into one action. Ms. Kowalczyk represented herself at the trial. Causation was the threshold issue at trial. The Queen’s Bench judge concluded that Ms. Kowalczyk had not established that any of her medical conditions were caused by any of the five accidents.

The court also concluded that any brain injury she suffered could not be causally linked to the accidents nor could any of her psychiatric disorders. [ 5 ] At the trial there were extensive historical medical reports marked as exhibits as well as complete medical charts from her doctors. Ms. Kowalcyzk called as expert witnesses a psychologist, two neuropsychologists and one of her current psychiatrists as well as her former family physician and former psychiatrist. The court also heard from a medical doctor in physical medicine and rehabilitation who had conducted an independent medical examination of Ms.

Kowalczyk and attended the trial for the purposes of cross-examination by both parties. SGI called no evidence at the trial. [ 6 ] Ms. Kowalczyk filed her application to extend the time to appeal on February 2, 2012. At that application Ms. Kowalczyk filed voluminous material including her affidavit which was 16 pages long with attached exhibits which were 31 pages long. She also filed her proposed Notice of Appeal which consisted of 38 pages. [ 7 ] The proposed Notice of Appeal sought relief which included a request for shorter sitting hours, an order allowing Ms.

Kowalczyk to file new evidence being depositions of a doctor from the Mayo Clinic, an order allowing evidence from Automobile Injury Appeal Commission hearings to be introduced, a request to have SGI answer questions from an examination for discovery of one of its representatives, a request to have a new doctor testify as an independent medical examiner by telephone at the Court of Appeal, a request to allow the filing of medical reports without calling the authors of the reports to testify, a request to have her daughter give evidence by

affidavit and a request to file copies of certain court cases allegedly helpful to her appeal. The proposed Notice of Appeal also contains primarily, although not exclusively, narrative by Ms. Kowalczyk of the history of the case, her various accidents and her medical condition. [ 8 ] At the hearing of Ms. Kowalczyk’s application to extend time to appeal, Lane J.A. determined that Ms. Kowalczyk had established that the delay in appealing was due to her health problems based on the supportive material from various doctors and that the delay was justified. Lane J.A., however, dismissed Ms.

Kowalczyk’s application on the basis that she had not shown that there was at least an arguable case that the trial judge had made an error which would result in her decision being wrong. He observed that the proposed appeal of Ms. Kowalczyk was an attempt to reargue her case which was dealt with at trial over a time period of approximately 3 weeks. He concluded that her appeal was destined to fail. [ 9 ] Section 9(6) of The Court of Appeal Act reads as follows: On the application of any party, a judge or the court may extend an appeal period mentioned in this

section where, in the opinion of the judge or court, it is just and equitable to do so. [ 10 ] The principles with respect to the enlargement of time to file a notice of appeal are set forth in Dutchak v. Dutchak , 2009 SKCA 89 , 337 Sask.R. 46 where Jackson J.A. summarized the test as follows: [12] According to these decisions, in determining whether leave should be granted the applicant must persuade the Court that: (

i) there is a reasonable explanation for the delay; (ii) he or she possessed a bona fide intention to appeal within the time limited for appeal; (iii) there is an arguable case to be made to a panel of the Court; and (iv) there will be no prejudice to the respondent, if leave is granted beyond what would be incurred in the usual appeal process. In any given case, one or more factors may be more important than another. [ 11 ] The material of Ms. Kowalczyk filed in support of her application to extend time for the most part seeks to argue factual matters and discretionary decisions of the trial judge.

The evidence tendered by Ms. Kowalczyk to support her case at trial was substantial and voluminous. In the context of the threshold issue of causation at trial, we agree that the proposed grounds of appeal amount to a request to rehear the evidence at trial and to call new and further evidence. In substance, the appeal is an effort to have this Court rehear the matter. Indeed Ms. Kowalczyk indicated to us that she would like this Court to rehear the matter. [ 12 ] That said, Ms.

Kowalczyk’s oral argument and her written material raise several issues respecting the treatment by the trial judge of certain evidence or potential evidence, which might potentially be considered questions of law. However, what must be raised is not only questions of law but arguable questions of law that are not doomed to fail. We are confident that this issue was fully argued and canvassed before Lane J.A. Ms. Kowalczyk has not satisfied us that it was arguable that the trial judge erred in the decisions she made respecting requests by Ms.

Kowalczyk to introduce certain evidence and that if she were to be allowed to call further evidence that the result would be different. We agree with the disposition by Lane J.A. of the application to extend time to appeal on the basis that there is no arguable case. We can find no error in his reasoning or conclusion. [ 13 ] We can find no basis for varying or discharging the order of Lane J.A. The application is accordingly dismissed. There will be no order as to costs.

DATED at the City of Regina, in the Province of Saskatchewan, this 3 rd day of July, A.D. 2012. “Ottenbreit J.A.” _______________ Ottenbreit J.A. I concur “Jackson J.A.” ______________________ Jackson J.A. I concur “Herauf J.A.” _______________________

Herauf J.A.