Court File and Parties

CITATION: Paulsson v. University of Illinois, 2010 ONCA 21

DATE: 20100114

DOCKET: M38358 (C50917)

COURT OF APPEAL FOR ONTARIO

Weiler J.A. (in chambers)

BETWEEN

Gunnar S. Paulsson

Plaintiff (Appellant/Moving Party)

and

Leo Cooper, The Board of Trustees of and for The University of Illinois, The American Association for The Advancement of Slavic Studies and Slavic Review

Defendants (Respondents/Responding Parties)

Gunnar S. Paulsson, acting in person

Geoffrey D.E. Adair, Q.C., for the responding parties

Heard: January 7, 2010

On appeal from the order of Justice J.P. Moore of the Superior Court of Justice dated July 21, 2009, and on a motion to set aside the registrar’s order of this Court dismissing the appeal for delay and for an extension of time to perfect the appeal.

ENDORSEMENT

[1] The applicant brings this motion to set aside the order of the registrar dismissing his appeal and to extend the time within which to perfect his appeal: see rules 61.13, 61.16(5) and 3.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The factors a court should consider in deciding whether to grant this type of motion are well-known. They are: whether the applicant had an intention to appeal within the time for bringing an appeal; the length of the delay, and any explanation for the delay; any prejudice to the respondent caused by the delay; and the justice of the case. This last factor is most important and requires a consideration of the merits of the appeal.

[3] On this motion, the respondent concedes that the applicant had an intention to appeal. The delay involved is approximately three months. Although the respondent submits that the applicant has not provided a satisfactory explanation for the delay, I am satisfied that the delay is due to administrative errors in the court system. In addition, it appears the applicant changed his address and, as a result, was initially unaware of what was transpiring. The appellant did not intend to deliberately ignore or flaunt the rules.

[4] The respondent does not assert that any prejudice has been caused by the delay.

[5] The remaining consideration is the justice of the case, including the merits of the appeal. The appellant does not have to convince me that he will succeed in his appeal. In discussing the merits of the appeal, I am simply commenting on whether it has any real chance of success. The applicant is the author of a book that was the subject of a book review published in an academic journal originating from outside of Ontario. Some copies of the review are available in Ontario. The applicant alleges that the review in question was defamatory of him and caused him economic loss and damage to his reputation. The respondent on this motion, The Board of Trustees of and for the University of Illinois, et. al., brought a motion seeking an order setting aside service ex juris upon them or, in the alternative, staying the action on the basis that Ontario was not a convenient forum for the hearing of the proceeding.

[6] After considering the relevant factors concerning whether the litigation had a real and substantial connection with Ontario, the motion judge set aside service ex juris. In the event that he had erred in his conclusion, the motion judge went on to consider whether Ontario was a convenient forum for hearing the proceeding and concluded it was not.

[7] The applicant’s Notice of Appeal raises numerous grounds of appeal. The main ground of appeal is that the application judge erred in law in holding that Ontario lacked jurisdiction simpliciter and that he erred in his analysis and his weighing of the relevant factors.

[8] The crux of the applicant’s action, insofar as jurisdiction is concerned, is his allegation that he suffered damages in Ontario as a result of the publication of the book review. The application judge commented, at paras. 12 and 13 of his reasons:

Paulsson maintains that the defamatory nature of the book review at issue in this case has contributed to the fact that he has been rejected as a candidate for academic jobs in Canada and elsewhere although he admits that since June 2004 the subject of the book review has not been raised in the course of any job application or interview and much the same criticism as he points to as defamatory in this case has been published by a man who is the chair of the history department at the University of Ottawa. As well, he testified that he believes his age, now more than 62 years, has adversely affected his efforts to secure an academic or teaching career, both before and after the publication of the book review.

Paulsson asserts that for an academic who lacks the protection of a tenured post, his reputation is his only valuable possession but there is precious little evidence available on this application to describe Paulsson’s reputation in Ontario generally or the nature and extent of the impression upon it worked by the publication of his book and/or any negative review of the book.

[9] The application judge also took into consideration Paulsson’s evidence that he did not believe any witnesses were needed on the liability issue, that he might retain an accounting expert and might call one or two doctors to testify on the damages issue.

[10] The application judge also considered each of the other factors he was required to take into account in determining whether the litigation had a real and substantial connection with Ontario.

[11] Given the state of the record before the application judge, and the lack of any apparent error in principle on his part, I am of the opinion that the appeal does not have any real chance of success.

[12] Accordingly, the motion to set aside the registrar’s order and to extend the time within which to perfect the appeal is dismissed.

“K.M. Weiler J.A.”