COURT FILE NO.: 316/06
DATE: 20070718
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
WENDY J. ELLIOTT
Plaintiff
(Respondent in Appeal)
- and -
RITINS INTERNATIONAL INC., RITINS STUDIO INC. and ANDREJS RITINS
Defendants
(Appellants)
George Waggott, for the Plaintiff (Respondent in Appeal)
Steven N. Speropoulos, for the Defendants (Appellants)
HEARD at Toronto: July 18, 2007
Lax J.: (Orally)
[1] This is a motion for an order directing the Registrar to not dismiss the appellant’s appeal until sixty days after the transcripts are completed. There are three transcripts required in order to perfect this appeal from a judgment of a Deputy Judge of the Small Claims Court on May 11, 2006.
[2] The transcripts for appeal were ordered on July 24, 2006. One transcript was received in November, 2006, the other two transcripts remain outstanding. When the appellant received the Registrar’s Notice of Intention to Dismiss the Appeal, he made inquiries of the transcript’s office at the Toronto Small Claims Court and spoke to Adrienne Hsieh. She is one of the reporters whose transcript is outstanding. He was told that the transcripts are incomplete because priority is given to the preparation of child welfare case transcripts.
[3] The appellant attempted to obtain the consent of the respondent to an extension of time to perfect the appeal to thirty days after the transcripts are prepared. As the respondent did not agree, this motion was brought.
[4] The respondent submits that the appellant has not demonstrated that he has maintained a firm intention to appeal because he did not pursue the court reporters to ensure that the transcripts were prepared in a timely manner.
[5] There is no evidence to suggest that this would have made any difference. Unfortunately, absent a direction from the Court, court reporters organize their workload as they see fit and litigants are very often understandably frustrated by their inability to hasten the process and perfect their appeals.
[6] Without minimizing the importance of this appeal to the parties, it cannot seriously be argued that the timely appeal from a $10,000.00 money judgment in Small Claims Court, is a matter that should take priority over other matters such as a child welfare case.
[7] I can see no prejudice at all to the respondent who has the benefit of the judgment with prejudgment interest. To dismiss the appeal would cause serious prejudice to the appellant. There are, in my view, good grounds for appeal and I see no reason to deprive the appellant of his appeal rights.
[8] I am satisfied that he has demonstrated a firm intention to appeal and provided a reasonable explanation for failing to observe the time limits. This satisfies the principles for granting relief. (See Frey v. Macdonald [1989], O.J. No. 236 (C.A.); Langer v. Yorkton Securities Inc. et al., 1986 2612 (ON CA), 57 O.R. (2d) 555 (C.A.).
[9] An order will therefore issue as follows:
(i) setting aside the Registrar’s order dismissing the appeal if this order has issued;
(ii) in the alternative, staying the delivery of the Registrar’s notice dismissing the appeal until thirty days after the delivery of the transcripts;
(iii) directing the court reporters Adrienne Hsieh and Dan Lockwood to deliver the outstanding transcripts on an expedited basis; and,
(iv) extending the time for perfecting the appeal to thirty days after the delivery of the certificate of transmission of transcripts.
[10] In my view, this motion should have been consented to or at least unopposed. A reasonable explanation was offered for the failure to perfect the appeal within the applicable time limits.
[11] In the circumstances, the moving party appellant should have its costs of the motion. I do not think however, the respondent’s conduct should attract substantial indemnity costs. I therefore fix the costs on a partial indemnity basis in the amount of $1,100.00, inclusive of GST, disbursements and fees.
LAX J.
Date of Reasons for Judgment: July 18, 2007
Date of Release: July 20, 2007
COURT FILE NO.: 316/06
DATE: 20070718
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
WENDY J. ELLIOTT
Plaintiff
(Respondent in Appeal)
- and -
RITINS INTERNATIONAL INC., RITINS STUDIO INC. and ANDREJS RITINS
Defendants
(Appellants)
ORAL REASONS FOR JUDGMENT
LAX J.
Date of Reasons for Judgment: July 18, 2007
Date of Release: July 20, 2007