CITATION: Athersych v. Beattie, 2010 ONCA 192

DATE: 20100311

DOCKET: C51355

COURT OF APPEAL FOR ONTARIO

Simmons, Cronk and Rouleau JJ.A.

BETWEEN:

Peter A. Athersych

Appellant

and

Kathleen Margaret Beattie, Ralph Diegel, Patricia Diegel and Nipissing Financial Corporation

Respondents

Russell MacCrimmon, for the appellant Peter A. Athersych

Paul Murray, for the respondent Beattie

Heard and endorsed: March 9, 2010

On appeal from the order of Justice Paul U. Rivard of the Superior Court of Justice dated October 2, 2009.

APPEAL BOOK ENDORSEMENT

[1] Although we agree that the request for an order dismissing the action should have been made on notice to the appellant, we see no realistic basis for concluding that the outcome would have been different had the order been made on notice.

[2] Except for retaining counsel, the appellant failed to comply with the terms of two orders designed to ensure the case moved expeditiously, one made at the time the respondent was permitted to replace a certificate of pending litigation with a letter of credit and the second made at a status hearing.

[3] We agree with the motion judge that the appellant has failed to explain through adequate material the extent of delay in this case. Further, contrary to the appellant's assertion, the respondent suffered prejudice because of the certificate of pending litigation, the requirement to replace it with a letter of credit and eventually the order restraining her from conveying or encumbering her property.

[4] In our view, the appellant's counsel was not entitled to rely on a bare statement from a court employee that a time line in an order had been extended without obtaining a copy of the underlying endorsement.

[5] The appeal is dismissed. Given the absence of notice of the request for dismissal, there will be no order as to costs of the appeal.