COURT FILE NO.: 03 BN 3759
DATE: 20040213
ONTARIO
SUPERIOR COURT OF JUSTICE
Divisional Court
B E T W E E N:
ATLANTIC AUTO BODY
Lawrence Ben-Eliezer, for the Appellant
Appellant
(Respondent on Motion)
- and -
LORNA MICHELE BOUDREAU
In Person
Respondent
(Applicant on Motion)
HEARD: February 12, 2003
REASONS ON MOTION TO DISMISS FOR DELAY
WEIN J.
[1] Ms. Boudreau, the Respondent on this appeal, obtained a judgment by default in Small Claims Court. Now, through no fault of her own, she has become mired in technical aspects of the appeal sought to be brought by the Appellant.
[2] The narrow issue to be decided today is whether or not this court has jurisdiction to hear her motion to have the appeal dismissed for delay.
[3] The history of the file is as follows:
• June 11, 2002 -- statement of claim issued: no statement of defence was delivered within the time the prescribed by the rules
• November 4, 2002 -- matter set down for assessment of damages: judgment given for Respondent in the amount of $9,300 plus incidental costs
• February 4, 2003 -- Appellant served with copy of notice of examination by registered mail
• February 28th 2003 -- notice of motion to set aside default judgment filed
• March 13, 2003 -- motion to set aside dismissed
• April10 2003 --Notice of Appeal filed
• January 21, 2004 – Notice of Motion by Respondent to dismiss appeal for delay filed, returnable January 29, 2004
• January 27, 2004 -- service of factum, book of authorities, and appeal book by Appellant
• January 29, 2004 -- motion by Respondent Ms. Boudreau to dismiss appeal for delay - adjourned to February 10 at request of Appellant, and further adjourned to February 12
• February 12th, 2004 -- Appellant first gives notice of intention to argue that motion to set aside must be heard by Registrar of Divisional Court.
[4] The Appellant, in responding to the motion, now takes the position that a dismissal for delay of an appeal to the Divisional Court from the Small Claims Court is to be heard on motion to the Registrar under Rule 61.13 (1) (b), and that this Court has no primary jurisdiction to dismiss the appeal for delay. An appeal from a decision made by the Registrar lies to this Court under Rule 61.16(5).
[5] I conclude that this Court does not have jurisdiction at this stage. I do so with some regret because Ms. Boudreau was apparently given incorrect advice by court office staff, was not advised of the Appellant’s position prior to today, and has already experienced the delay of the appeal for almost a year, in the circumstances set out in the affidavit material filed. Mr. Ben-Eliezer candidly and with appropriate embarrassment admits his error and lack of diligence in pursuing the appeal correctly. Time is of the essence for Ms. Boudreau as she has unrelated but urgent medical issues.
[6] Nonetheless, it is apparent that the motion must be heard before the Registrar of the Divisional Court. Under Rule 61.13(1), the Respondent may make a motion to the Registrar to have the appeal dismissed for delay. This Rule is set out below:
DISMISSAL FOR DELAY
Motion by Respondent
61.13 (1) Where an appellant has not,
(a) filed proof that a transcript of evidence that the parties have not agreed to omit was ordered within the time prescribed by sub rule 61.05 (5); or
(b) perfected the appeal within the time prescribed by sub rule 61.09 (1) or by an order of the appellate court or a judge of that court, the respondent may make a motion to the Registrar, on ten days notice to the appellant, to have the appeal dismissed for delay.
[7] An explanatory note is set out at the beginning of Rule 61 of the Ontario Annual Practice 2003-2004:
“Parties may move before the Registrar for dismissal of appeals and motions for leave to appeal if the prescribed time-limits for filing transcripts or transmission are not obtained. The Registrars on their own motion, after notice is given, may dismiss, with costs, appeals not perfected within six months of service of the notice of motion or appeals from summary judgments not perfected within 60 days of the filing of the notice of appeal. (rule 61.13). Review of a Registrar’s order is available under rule 61.16(5).”
[8] The Registrar, on hearing the motion, will be aware of the following case. In McGlynn v. McGlynn, [2002] O.J. No. 2047 (Div. Ct.) (QL), there was a motion to dismiss the appeal for failure to perfect. The motion was brought before the Registrar of the Divisional Court. The Registrar allowed a further 15 days to file the necessary materials to perfect his appeal. The Appellant filed the materials on the 15th day, but they did not conform to the requirements in the Rules.
[9] The Court noted that under Rule 61 the Appellant must perfect his appeal and if the Appellant fails to do so, the Respondent may make a motion to the Registrar to have the appeal dismissed for delay. Where the Appellant does not cure the default before the hearing of the motion, the Registrar shall make an order dismissing the appeal for delay with costs. It was also noted that a single judge of the appeal court has the authority to set aside or vary the decision of the Registrar in failing to dismiss an appeal for delay.
[10] In McGlynn, the court granted a motion to set aside the order of the Registrar allowing the appellant 15 days to perfect the appeal, and ordered the dismissal of the appellant’s appeal for delay.
[11] Accordingly, it is ordered that this matter be set down before the Registrar of the Divisional Court in this region for hearing. I am ordering that the matter proceed without the necessity of filing further documents. Copies of the existing materials will form the basis of the application, with changes in reference to the court made as required by the Registrar. The matter will be set down for hearing on an expedited basis, on three days notice to the parties, on a date convenient to Ms. Boudreau.
[12] In the unusual circumstances of the case, costs of the motion before me will be to the Respondent Ms. Boudreau in the amount of $250.00 payable forthwith.
Wein J.
Released: February 13, 2004
COURT FILE NO.: 03-BN-3759
DATE: 20040213
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ATLANTIC AUTO BODY
v.
Appellant
(Respondent on Motion)
- and –
LORNA MICHELE BOUDREAU
Respondent
(Applicant on Motion)
REASONS ON MOTION TO DISMISS DELAY
WEIN J.
Released: February 13, 2004