COURT FILE NO.: 62/05

DATE: 20050228

SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT - ONTARIO

RE: CHARLES C. ROACH, Plaintiff (Appellant)

A N D:

MICHAEL ONIEL and LEGAL AID ONTARIO, Defendants (Respondents)

BEFORE: MOLLOY J.

COUNSEL: Samuel Willoughby, for the Appellant

Lee David, for the Respondent Legal Aid Ontario

Michael Oniel, in person

HEARD: February 24, 2005

E N D O R S E M E N T

Introduction

[1] The plaintiff (“Mr. Roach”) seeks leave to extend the time for appeal from the decision of Master Clark, released July 26, 2004. Master Clark had refused to grant leave to Mr. Roach to amend his statement of claim in order to assert additional grounds and relief against the defendant Legal Aid Ontario (“LAO”).

[2] The statement of claim was issued on July 7, 2003 under the Simplified Rules. The claim as against Mr. Oniel is essentially based on fees for professional services allegedly rendered by Mr. Roach in connection with a malicious prosecution action brought by Mr. Oniel against various police defendants. After a long legal battle, Mr. Oniel received a judgment and costs in respect of that action. By then, Mr. Roach was no longer acting for him. There is a factual dispute as to the nature and extent of Mr. Roach’s retainer and when it was terminated.

[3] The parties agree that the relevant factors to be considered on this motion are: the length of the delay; a settled intention to appeal within the prescribed time; the merits of the appeal; and any prejudice to the respondent.

The Delay

[4] The action was set down for trial by the plaintiff only when a dismissal for delay by the registrar was imminent. At that point, LAO brought a summary judgment motion to dismiss the action as against it. In response, the plaintiff brought a motion to amend its statement of claim as against LAO, which motion was heard by Master Clark on May 18, 2004. In light of that motion, the summary judgment motion has been held in abeyance.

[5] Master Clark dismissed the plaintiff’s motion, for written reasons released on July 26, 2004, and which I understand were received by plaintiff’s counsel on July 28, 2004. The parties are now in agreement that the decision of Master Clark is a final order and as such an appeal lies to the Divisional Court. However, counsel for Mr. Roach initially issued a notice of appeal (dated August 5, 2004) returnable before a judge of the Superior Court, rather than before Divisional Court.

[6] Mr. David, counsel for LAO, telephoned Mr. Willoughby soon thereafter to advise him that the appeal had been brought in the wrong forum, but was unable to reach him. Mr. David therefore wrote to Mr. Willoughby on August 24, 2004 and suggested he change the venue of his appeal to the Divisional Court because the Order of the Master was final in nature.

[7] On September 20, 2004, Mr. David again wrote to Mr. Willoughby seeking confirmation that the appeal would proceed in Divisional Court. Mr. Willoughby replied by letter later that same day that he would not be transferring the appeal to Divisional Court as he was of the view the decision was interlocutory and the Superior Court was the proper forum.

[8] The appeal came on in the Superior Court before Madam Justice Low on October 27, 2004. At that point, Mr. Willoughby conceded that the appeal should have been brought to the Divisional Court. However, he did not advise Mr. David or Mr. Oniel of this prior to their attendance in court that day. In the result, Madam Justice Low endorsed the record that the proper forum for the appeal was in the Divisional Court and ordered costs payable to LAO and Mr. Oniel in the amounts of $300 and $100 respectively. She declined to traverse the matter to Divisional Court.

[9] After that appearance, Mr. Willoughby sought the consent of Mr. David and Mr. Oniel to traverse the matter to Divisional Court. Mr. David consented at that time, but Mr. Oniel refused to do so (as was his right). Mr. Oniel wrote to Mr. Willoughby on November 19 and November 26, 2004 advising that he would not consent and stating that he would object to any further steps being taken until the costs ordered by Low J. had been paid. Although Mr. David initially consented to the appeal proceeding in the Divisional Court, he subsequently withdrew that consent because of the delay by the plaintiff in proceeding with this motion. On the argument before me, Mr. David did not consent or oppose the relief sought, but made submissions as to the circumstances of the delay.

[10] Mr. Oniel received payment of the cost ward on December 12, 2004 (although they were ordered to be paid by November 27, 2004). However, he heard nothing further from the plaintiff’s solicitors until the late afternoon of February 17, 2004 when he was served with the three volume motion record and factum for this motion returnable on February 24, 2004.

[11] The only explanation for the delay from November 26, 2004 is that Mr. Willoughby was trying to clear dates for the motion with Mr. David and there was a period of time in December (I believe two weeks) during which Mr. David was away on vacation. Mr. Willoughby did speak to Mr. David about dates in early January. An initial motion date was obtained but Mr. Willoughby did not have his materials ready. Therefore, that date was abandoned and this February 24 date substituted. None of this was known to Mr. Oniel who was not consulted at all about the return date, even though he was at that point the only party opposed to leave being granted.

[12] It is apparent that neither of the defendants are responsible for the delay. The major portion of the delay was caused by the appeal having been commenced in the wrong court. Obviously, that is the responsibility of plaintiff’s counsel. Further, counsel for the LAO advised plaintiff’s counsel of the error in a timely way and the plaintiff nevertheless failed to cure the problem. I can therefore see no good reason for the delay between mid August and October 27 when Mr. Willoughby finally conceded his error.

[13] Likewise, although some delay is inevitable to get a court date and prepare material, the length of delay from November 19, 2004 to February 24, 2005 is longer than it needed to be.

[14] Therefore, the length of the delay and the explanation for the delay are both problematic. Case law to the effect that an error by counsel ought not to prejudice the client’s right to a hearing on the merits is less applicable in a case such as this, where the plaintiff is himself an experienced lawyer and his own firm is representing him in the litigation.

Settled Intention to Appeal

[15] Mr. Willoughby argues that the settled intention to appeal component of the test is met as the original notice of appeal was issued promptly after the decision of the Master, albeit in the wrong court.

[16] I agree there was an initial intention to appeal. However, Mr. Oniel makes a valid point that the intention to appeal must be ongoing and that the excessive delay by the plaintiff after the Master’s Order is not consistent with a bona fide and continued intent to proceed with the appeal.

Merits of the Appeal

[17] The claims which Mr. Roach sought to add to his statement of claim relate solely to LAO. There are two aspects to the claim. First, through various causes of action, Mr. Roach claims entitlement to any amount by which the costs recovered by LAO in the litigation involving Mr. Oniel exceed the amounts LAO paid on any legal aid certificate issued in favour of Mr. Oniel. Second, Mr. Roach claims damages in negligence against LAO for failing to take steps to ensure Mr. Oniel did not receive any funds from the City of Toronto on account of legal costs, thereby depriving the plaintiff of the opportunity to secure such funds.

[18] In considering the merits of the appeal on a motion such as this, it is not my role to actually rule on the appeal itself. It is not enough that I might dismiss the appeal if it were before me. If there is any chance of success on the appeal, this aspect of the test for extending the time for appeal would be met.

[19] In my opinion, there is no chance the appeal will succeed. It is totally without merit.

[20] With respect to the amounts recovered by LAO, s. 46(4) of the Legal Aid Services Act, S.O. 1998, c. 26 provides that all costs ordered to be paid to an individual who has received legal aid “are the property” of LAO. Those funds, including any in excess of the amounts paid out by LAO (if there are any) belong to LAO. LAO may have a discretion to return excess funds to a legal aid claimant (as, for example, repayment of any amounts the legally aided person has himself contributed) or LAO may also pay extra amounts to the lawyer involved if it deems that to be appropriate. However, that is solely a matter for the discretion of LAO and Mr. Roach has no right, statutory or at common law, to those funds. Unjust enrichment cannot arise where the funds by statute belong to LAO. No facts are pleaded to support any other claim against LAO in respect of how its discretion not to pay any excess funds to Mr. Roach may have been exercised.

[21] Furthermore, there has already been a ruling by a judge of this Court that Mr. Roach is not entitled to recover fees recovered in excess of the legal aid rate. On September 29, 2003, the plaintiff appeared before Madam Justice Backhouse seeking a Mareva type injunction to freeze monies received by Mr. Oniel. Backhouse J. dismissed the motion. Her endorsement at that time includes the following findings:

In my view, the material filed on behalf of the Plaintiff, on its own, falls far short of establishing even a prima facie case. It is clear that Legal Aid has been reimbursed in full by Mr. Oniel. … Mr. Roach is not entitled to legal fees recovered by Mr. Oniel in excess of the Legal Aid rate, where Mr. Roach was working under a legal aid certificate.

[22] Mr. Oniel included this decision in the material he filed in response to the motion before me. This would appear to be a direct ruling on the very issue of Mr. Roach’s entitlement to funds recovered for legal costs over and above the amounts paid on legal aid certificates. No appeal was taken from this decision. Mr. Oniel relies on the principle of res judicata. Thus, even apart from the grounds upon which the Master found no cause of action in the new allegations against the LAO, the decision of Backhouse J. is a further obstacle for the plaintiff. I put it no higher than that, however, because Mr. Willoughby submitted in argument that he was unaware of the decision of Backhouse J. and not in a position to address it. Thus, although application of res judicata in light of the decision of Backhouse J. is a further indication of the weakness of the plaintiff’s appeal on the merits, I do not rest my decision upon it, but rather on the grounds addressed by the Master.

[23] With respect to the negligence claim, the Master ruled that the allegations were not supported by any factual underpinnings to support the cause of action. I agree. There is no pleading of any facts that could give rise to a duty owed by LAO to Mr. Roach, nor any power or ability by Legal Aid to have any control over monies paid by third parties to Mr. Oniel.

[24] In short, I see no merit whatsoever to the grounds of appeal asserted. The amendments sought are legally untenable. In my view, the appeal has no chance of success.

Prejudice

[25] There is no prejudice alleged by LAO. However, Mr. Oniel does claim he is prejudiced as a result of the delay. He describes himself as “an innocent prisoner of the justice system for over 16 years”. After what he has been through, that does not seem to me to be an exaggeration. Mr. Oniel alleges that every court appearance is traumatic for him. He suffers from stress and requires medication to even attend court. Although he did an admirable job of preparing material and was an articulate advocate on the motion before me, the stress this is causing for him is apparent. He points out, quite correctly, that this is a Simplified Procedure case, which is supposed to be a streamlined and expeditious means of resolving disputes. The cause of action asserted dates back to the period from 1992 to 2002. The action was commenced in July 2003. There is still no trial date. Further delay is prejudicial to Mr. Oniel. While the prejudice is not so significant that it would warrant, in and of itself, refusing the relief sought, neither is it inconsequential. It is a relevant factor to be taken into account.

Conclusion

[26] Mr. Oniel provided the Court with the very recent decision of the Court of Appeal in Lee v. The Bank of Nova Scotia, released on February 21, 2002 (Court file # M32014(C42615) and M32158, heard February 17, 2005, per Feldman, Cronk and LaForme JJ.A., unreported. In that case an unrepresented plaintiff, facing a 30 day time limit to launch his appeal, was five months late issuing his notice of appeal. The Court of Appeal noted that counsel for the defendant had advised the plaintiff of the time period for appeal in ample time for him to comply and found the five-month delay by the plaintiff to be “significant”. That, in addition to a finding that there was no merit to the appeal, was sufficient to persuade the Court that it ought not to extend the time for appeal. As Mr. Oniel points out, if that is the standard to which an unrepresented litigant is held, the result should certainly not be different for a personal plaintiff who is himself a lawyer with 40 years experience and who has his own firm with many other lawyers representing him.

[27] Taking all of the relevant factors in this case into account, I am not persuaded by the plaintiff that leave to extend the time for appeal should be granted here. Even where any single factor might not, on its own, be sufficient to warrant such a disposition, the combination of factors makes it so. The delay, although partially explained, is inordinate when seen in the circumstances of the case. The explanation for much of the delay is not acceptable, particularly given the timely notice given to plaintiff’s counsel that the appeal was brought in the wrong place. Further, there is no merit to the appeal and the defendant Oniel would be adversely affected by the further delay that would result if the appeal were to proceed. Therefore, the plaintiff’s motion is dismissed.

[28] The defendants are entitled to their costs in responding to this motion. Those costs are fixed in the amount of $1000 for Legal Aid Ontario (recognizing that time was spent for attendance and argument and that Mr. David was of considerable assistance to the Court even though he did not fully oppose the relief sought by the plaintiff and filed no material) and $750 for Mr. Oniel (who was not represented by counsel, but who filed helpful material prepared under time pressure and provided the Court with an articulate and well-reasoned oral argument). Those costs are payable forthwith.

MOLLOY J.

Released: February 28, 2005