Court of Appeal for Ontario

Citation: Keuroghlian v. Goodmans LLP, 2009 ONCA 726 Date: 2009-10-16 Docket: M37979 (C50410)

Between:

Sarkis Keuroghlian Applicant (Appellant/Moving Party)

and

Goodmans LLP Respondent (Respondent/Responding Party)

Before: Laskin J.A. (In Chambers)

Counsel: Kirkor A. Apel, for the moving party Peter C. Wardle, for the responding party

Heard: September 21, 2009

On appeal from the order of Justice Andra Pollak of the Superior Court of Justice dated April 7, 2009 and on a motion to set aside the order of the Registrar dismissing the appeal for delay dated July 24, 2009.

ENDORSEMENT

[1] The moving party, Sarkis Keuroghlian, asks to set aside the order of the Registrar dismissing his appeal for delay and for a reasonable period of time to perfect his appeal.

A. THE FACTS

[2] The responding party, Goodmans LLP, acted for Mr. Keuroghlian at a trial in late November 2005. When Mr. Keuroghlian did not pay his outstanding accounts, Goodmans assessed its fees. On January 26, 2009, the Assessment Officer concluded that Mr. Keuroghlian owed Goodmans approximately $400,000 in fees. On April 14, 2009, Pollak J. dismissed Mr. Keuroghlian’s appeal of the assessment.

[3] On May 6, 2009 – within the time prescribed for appealing – Mr. Keuroghlian filed a notice of appeal to this court from the decision of the motion judge. As the transcripts were already available and thus no evidence needed to be transcribed, Mr. Keuroghlian was required to perfect his appeal within 30 days. He did not do so, but he was then self-represented.

[4] On June 8, 2009, the Registrar of this court issued a notice of intention to dismiss Mr. Keuroghlian’s appeal for delay if it was not perfected by June 30. Mr. Keuroghlian immediately retained Mr. Apel to represent him on the appeal. Mr. Apel then sought an extension of time beyond the June 30 deadline.

[5] On June 30, Mr. Apel and counsel for Goodmans agreed on a 20-day extension, and so notified the Registrar. However, the appeal was still not perfected within this additional 20-day period. On July 24, the Registrar dismissed Mr. Keuroghlian’s appeal for delay.

[6] After counsel for Goodmans refused to consent to setting aside this order, Mr. Keuroghlian brought this motion. He did not serve his material until September 10, 2009.

[7] On September 16, 2009, Harvison Young J. granted summary judgment against Mr. Keuroghlian’s wife and daughter on guarantees in the amount of $350,000, which they had given to Goodmans shortly before the trial on account of its fees. Harvison Young J. stayed the enforcement of the summary judgment pending my decision.

B. DISCUSSION

[8] Various cases have itemized a list of considerations relevant to the question whether a court should exercise its discretion to set aside a Registrar’s order: Has the moving party satisfactorily explained the delay? Did the moving party miss the deadline because of inadvertence? Did the moving party bring its motion promptly? Is the respondent party prejudiced? Depending on the case, these considerations provide useful criteria for structuring the court’s discretion. However, the overriding question is simply whether, after taking account of the interests of both parties, setting aside the Registrar’s order is just: see Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 O.R. (3d) 179 (C.A.).

[9] In my view, it would not be just to set aside the Registrar’s order. Admittedly, the delay – about three and a half months – is not unduly long, and for part of that period Mr. Keuroghlian did not have a lawyer. What weigh heavily against Mr. Keuroghlian’s position, however, are the delay after he was represented, the unsatisfactory explanation for that delay and the absence of any evidence that he has taken a single step to perfect his appeal since June 30. The following considerations are, in my view, determinative:

• Through his counsel, Mr. Keuroghlian acknowledged that by June 30 he had all the materials he needed to perfect his appeal.

• By June 30, Mr. Keuroghlian was already almost a month late in perfecting his appeal. He accepted and agreed to a further 20-day extension. In agreeing to this extension, Mr. Keuroghlian must be taken to be on notice that if he wanted to preserve his appeal rights he had to get his appeal materials in order immediately. I add that although the underlying appeal materials are not before me, I doubt that the appeal itself was so complex that it required additional time.

• Not only did Mr. Keuroghlian fail to perfect his appeal within the 20-day extension he had agreed to, he gave no credible explanation for his failure to do so. He, or more accurately, an articling student in his lawyer’s office, states only that “in addition to managing and maintaining his busy legal practice, preparing and perfecting an appeal is an onerous and time consuming task”. I recognize the demands on a sole practitioner, but having agreed to this extension and having offered no evidence that anything was done to perfect the appeal in the 20 days, this explanation rings hollow.

• Moreover, after the Registrar’s July 24 order, Mr. Keuroghlian waited a month and a half before moving to set it aside. This does not qualify as moving promptly.

• Finally, I infer from the silence of Mr. Keuroghlian’s affidavit material that in the two-month period between the Registrar’s order and the argument of this motion, he still took no steps to perfect his appeal.

[10] In the light of these considerations, I dismiss Mr. Keuroghlian’s motion. I do so without taking into account Goodmans’ assertion that it is now prejudiced because of the conditional stay granted by Harvison Young J. Goodmans is entitled to its costs of the motion, which I fix at $3,000, inclusive of disbursements and GST.

“John Laskin J.A.”