SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: Diamond & Co. and Anthony Diamond (Applicants/Plaintiffs) v. Christina Maria Nigro, Anthony Thomas Nigro and 1106743 Ontario Limited (Respondents/Defendants) AND Alex Kouleles (Applicant/Respondent in Appeal) v. A. Diamond in Trust (Trustee) Anthony Diamond and Diamond & Diamond (Respondents/Applicants in Appeal)
BEFORE: LANE, THEN and MEEHAN JJ.
COUNSEL: Joseph Markin for the Applicants, A. Diamond in Trust, Diamond & Co. and Anthony Diamond
George Argiris for the Respondents
HEARD: December 2, 2003
E N D O R S E M E N T
Nature of the Proceedings
1The Applicants Diamond & Co. and Anthony Diamond seek to set aside the June 3, 2003 decision of Justice Lang sitting as a single judge of the Divisional Court.
2She refused to set aside the March 3, 2003 decision of Justice Swinton who had dismissed the Applicants’ motion for leave to appeal the January 22, 2003 decision of Justice Rouleau setting aside writs of seizure and sale obtained pursuant to default judgment against the Respondents and awarding costs against the Applicants.
3The Applicants request the orders of Justices Lang and Swinton be set aside and leave to appeal the decision of Justice Rouleau be granted.
4This matter is to be heard together with A. Diamond in Trust (Trustee) v. Anthony Diamond, Diamond & Diamond v. Alex Kouleles. In that case the Applicants seek to set aside the June 3, 2003 decision of Justice Lang sitting as a single judge in the Divisional Court. She dismissed the applicants’ motion to set aside the March 3, 2003 decision of Justice Swinton and their motion for leave to appeal the October 17, 2002 order of Justice Paisley discharging two mortgages held by Mr. Diamond upon payment of money into court. He also ordered the applicants to pay $2900 in costs. Section 21(5) of the Courts of Justice Act provides the panel of the Divisional Court may on motion set aside or vary a decision of a single judge of the Divisional Court who hears or determines a motion.
Standard of Review
5The decision of the motions judge to decline leave to appeal may be interfered with only in rare circumstances.
6Only if the judge declined jurisdiction by acting upon the wrong principles or if the judge applied the wrong test in deciding whether or not to grant leave can the court set aside a decision: Millcraft Investments Corporation et al. v. Ontario Regional Assessment Commissioner, Region No. 3 (2000), 46 O.R. (3d) 685 (Div. Ct.).
7It is irrelevant whether or not the decision of the single judge was correct. The only issue of the full panel is whether the single judge declining jurisdiction may also involve the motion judge disregarding the statutory right or failing to give the respondent party the right to be heard: Bottom v. Broom, [2001] O.J. No. 3125 Quik Law (Divisional Court); Hellman Investments Limited v. CIBC (1996), 1996 413 (ON CA), 29 O.R. (3d) 612 (C.A.).
Background (Kouleles)
8On October 15, 2002 as indicated Justice Paisley made an order discharging the mortgages and awarding costs against the Applicants. The Applicant refused to approve the draft judgment of Paisley J.
9The applicant was at that time unrepresented by counsel. He attempted to file a Notice of Appeal but was advised that that was not the proper procedure. The Notice of Appeal was abandoned. On October 23, 2002, the applicant filed a motion for leave to appeal with a return date of December 10, 2002 which was later changed on consent to December 9, 2002. On January 31, 2003 the Respondents were notified that henceforth the Applicants would be represented by Joseph Markin. The motion for leave to appeal was scheduled by Mr. Markin for February 28, 2003. Mr. Markin argues that he had a previous commitment for that day which he had not realized when he set the motion’s date. There is a dispute between counsel as to what transpired between them on the days leading up to that hearing date. On February 27, 2003 Mr. Argiris served a motion record returnable March 3, 2003. Mr. Markin was of the opinion that this was insufficient notice but in argument conceded the notice was correct because he was unaware of exactly when it was served on his office. Mr. Markin contacted Mr. Argiris and asked that the matter not proceed until April 24, 2003. Mr. Markin by letter February 18, 2003 in Nigro requested that the matter be adjourned even though he had put it on for February 28th. Mr. Argiris by letter February 27th indicated that in any case they would be in court March 3rd in Kouleles and suggested that it be put over until March 3rd and offered to appear in Divisional Court on his behalf to adjourn the matter to March 3rd. The same day Mr. Markin replied that he would not be in attendance on February 28th and “you can advise the court I am in another court on that day” and that he “did not consent to any submission you may make to the court”. He also indicated that in Diamond v. Kouleles he was not given sufficient notice and “I will not be able to attend. You can advise the court of this as well”. “Your conduct as a lawyer is extremely unprofessional and may be necessary to involve the Law Society”.
10Mr. Argiris attended before Madam Justice Molloy and had the matter put over to March 3rd.
11Mr. Markin failed to attend or have anyone attend on his behalf on either February 28th or March 3rd. Justice Swinton decided in his absence to dismiss the motion and awarded costs in the amount of $2,675.00 in Nigro. The motion for leave to appeal the order of Justice Paisley in Kouleles was dismissed as abandoned. Justice Swinton indicated in Kouleles that “I am satisfied the motion for leave will stand no success for the reasons given”.
12In Nigro the Applicant submits that Justice Lang erred in not considering that the moving party had been advised by the court that this proceeding would not take place on February 28, 2003 and then was informed on February 26 that the matter would proceed on February 28th; failing to consider the February 28 date was inadvertently sent by Mr. Markin; failing to consider the Applicant had no actual notice of the adjournment granted February 28 but could not appear on March 3rd and other allegations of misconduct against Mr. Argiris. The Respondent in Nigro argues there are no grounds to interfere with the decision of Justice Lang and argues that Lang J. applied the right test in denying the Applicants leave to appeal on the basis that there was no merit to the appeal.
13A party having been given the notice of a motion who chooses not to appear for his own reasons at the hearing of that motion cannot attribute his failure to attend to accident, mistake or insufficient notice: LeBlanc v. York Catholic District School Board (2002), 2002 37923 (ON SC), 61 O.R. (3d) 686. In Kouleles it was argued that the motion record of Mr. Argiris was returnable March 3, 2003. Mr. Markin argues that this was insufficient notice although he conceded that under the rules the time period was correct and he was unaware that his office had been served. He argues that Justice Lang erred in not considering relevant factors and not giving weight to the merits of the proceedings. He argued that he was not the solicitor of record at the time of service and orally before us he argued that he had only been retained for purposes of the trial although he conceded that the notice he served upon Mr. Argiris was entitled in the Divisional Court.
14There is in our view no merit to this argument. He indicates that Justice Lang erred in dismissing the motion without hearing the merits of the Applicant’s proceedings or giving any weight to the merits. He argued that a transcript of the earlier proceedings was not yet available. He argued that the face of the record showed that Mr. Justice Paisley’s order was excessive. Finally, he argued that the judge erred in not considering the scheduling conflict of Mr. Markin in that it was inadvertent and that she erred in concluding Mr. Markin chose not to appear or have anyone else appear before Justice Swinton. He further submitted that he could not contact his client nor could he be present on that day. It is difficult to follow why he would be attempting to contact his client if indeed he was not retained in relation to this matter.
15In her reasons in Kouleles, Justice Lang deals with the setting aside of the order on the basis of Rule 37.14. She deals with the question of whether Mr. Markin was really counsel on the leave application and denied his ability to raise such a technicality late in the day. She found that Mr. Markin was aware of the March 3rd date, that he was served with the requisite notice and part of the problem with service is that Mr. Markin operates apparently from 3 different addresses. In conclusion she found that Mr. Markin was aware of the court date in Kouleles and did not ask anyone to appear on his behalf including his client to speak to the matter and found that this was not a non-appearance caused by “accident, mistake or insufficient notice” as required by rule 37.14(1)(b). She then went on to deal with the matter of costs. Her reasons indicate she awarded costs only on a partial indemnity basis and that the matter took over half a day and some preparation time. She then fixed costs at $4800 plus G.S.T. plus disbursements. Mr. Markin in his oral argument asked us to interfere on the basis of excessive costs. Costs are commonly fixed by the judges now as required. In our view there was evidence upon which Justice Lang could award the amount which was awarded.
16In Nigro she indicates in her written reasons that rule 59, which was the rule cited by Mr. Markin when he brought the motion, was not applicable to this type of situation and proceeded to deal with it under rule 37.14 where a person fails to appear through accident, mistake or insufficient notice. She went on to indicate that in Nigro, February 28th was the date chosen by Mr. Markin without consulting with Mr. Argiris. When he did write on February 18th he gave no proposed date for the return of the motion. She then went on to cite the correspondence leading to a suggested date of March 3rd and she indicated that Mr. Argiris did adjourn it to March 3rd and that he notified Mr. Markin’s office of the return date.
17She commented that the material before her was the affidavit of an assistant of Mr. Markin who apparently works from a secretarial agency and indicates that communications are difficult with Mr. Markin because of the previously noted differing addresses but that is a fault attributable to Mr. Markin. She also comments that there was a confirmation form sent February 26th saying there would be an opposed adjournment. His assistant’s action sending this confirmation, about which Mr. Markin filed an affidavit after the argument was concluded before Lang J., must be nevertheless attributable to Mr. Markin. She then found that he chose not to appear on February 28th. He was aware of the potential March 3rd date and he failed to make appropriate arrangements to have himself informed of the results of the February 28 appearance and he failed to appear on March 3rd. His failure to appear was not the result of accident, mistake or insufficient notice, he simply chose not to appear on both dates.
18In our view there is no reason to interfere with the decision of Justice Lang. It could not be said that she failed to exercise her jurisdiction or that she operated under any error in principle. She would not interfere with Justice Swinton’s costs order. The motion was a general request to set aside the order and there was no extra material to dealing with the costs issue before Swinton J. We agree with her in regard to her award of costs. She chose to award costs on a partial indemnity basis and indicated it was late in the day and that the matter had gone on for a substantial time period she fixed costs at $4,200 plus G.S.T. plus disbursements of $60.78 all payable within thirty days.
19There is nothing which would lead us to interfere with her award of costs on a partial indemnity basis. Thus in both matters the Applicants’ appeal of the orders of Madam Justice Lang are dismissed. As indicated at the conclusion of the hearing Mr. Argiris is to make his submissions within thirty days and Mr. Markin is to have twenty days thereafter to make his submissions in reply as to the costs of this hearing.
Lane J.
Then J.
Meehan J.
DATE: December 2003