Marc Y. Simard

The moving party brought a motion for leave to appeal a lower court decision.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to one of the responding parties.

The appellant appealed a Small Claims Court decision dismissing his claim against a process server.

The appellant had hired the process server to file a Notice of Intent to Defend, but the document was not filed due to missing fees and an affidavit of service.

The appellant was subsequently noted in default and ordered to pay costs thrown away in the underlying action.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusions that the process server did not owe a duty of care to provide legal advice, and that the appellant's own failure to act caused his damages.