COURT FILE NO.: 641/03

DATE: 20031127

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

KEYVAN RASEKHI-NEJAD

Plaintiff

• and -

THE GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA

Defendant

Susan E. Fraser, for the Plaintiff

Alan L. Rachlin, for the Defendant

HEARD: November 27, 2003

MCRAE J.: (Orally)

1This is an application for leave to appeal a cost award made against the plaintiff by Pitt J. on November 18^th, 2002 in the amount of $3,000.00.

2The case has a convoluted history. The plaintiff was without counsel when he appeared before Pitt J. but managed to get an adjournment to January, 2003, subject to the cost award being paid within 30 days.

3The cost award was not paid but in January the case was further adjourned by Himel J. who imposed a new cost award on that adjournment. Leave to Appeal the cost award of Himel J. was later dismissed.

4The applicant has been represented by counsel from January to today. From January 24^th he was represented by Mr. Mohammed Muslim. From March 4^th, his counsel was changed to Mr. Andrew Dekany. On June 25^th, 2003, Ms. Fraser became solicitor of record. On May 21, 2003, Mr. Dekany filed this application to appeal the cost award made the previous November by Pitt J.

5No valid explanation for the delay in applying for leave to appeal has been given.

6Rule 62.02 requires that the time for applying is limited to seven days from the date of the order. His inordinate and unexplained delay is reason enough to dismiss the application. See Hill v. Ross Memorial Hospital, [1995] O.J. 3287 (Div. Ct.). I quote from the judgment of O’Driscoll J.:

“In Yakabuski v. Yakabuski Estate (1988), 36 C.P.C. (2d) 189, 192 (Ont. Div. Ct.), Steele J. said:

… Leave should be granted sparingly and only in very obvious cases (see Axelrod v. Beth Jacob of Kitchener, 1943 366 (ON SC), [1943] O.W.N. 80, [1943] 2 D.L.R. 115 (H.C.)). An award of costs by a judge will not lightly be interfered with. The applicant must convince the judge from whom leave is requested that there are strong grounds upon which the appellate Court could find that the judge erred in exercising his discretion. (See Andrews v. Andrews, supra, at p. 36 [O.R.]).”

7In that case as well the application was out of time. O’Driscoll refused to extend the time as he has done in several other cases, notably Lancer Partners v. Handleman Co. of Canada Ltd., [1999] O.J. 4033 (S.C.J.) and Orser v. Grant, [2001] O.J. 24 (Div. Ct.).

8I therefore refuse leave to extend the time to appeal the cost award. However, I think I should go further and add that there is no reason in my mind to doubt the correctness of the award of Pitt J. It was entirely within his discretion and was made for valid reasons. Nor am I satisfied that there is an issue which transcends the parties requiring resolution by the Divisional Court. The application for leave to appeal the cost award is dismissed.

9Costs to the respondent fixed at $2,000 inclusive of GST and disbursements.

MCRAE J.

Date of Reasons for Judgment: November 27, 2003

Date of Release: December 9, 2003

COURT FILE NO.: 641/03

DATE: 20031127

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT