Court File and Parties

COURT FILE NO: 517/08 DATE: 2008-10-21

SUPERIOR COURT OF JUSTICE - ONTARIO DIVISIONAL COURT

RE: JACQUELINE GLADYS GEORGINA BOONE & ROBERT WILLIAM BOONE A N D: ADVANTAGE CAR AND TRUCK RENTALS LTD.

BEFORE: KARAKATSANIS J.

COUNSEL: J Martini, for the defendant/Applicant Jacqueline Boone, the plaintiff/Respondent, in person

HEARD: October 16, 2008

ENDORSEMENT

[1] The defendant was unsuccessful in the Small Claims Court and seeks to appeal the judgment dated July 23, 2008 that it pay the plaintiff $5,558 plus $1275 costs and 14.88% pre-judgment interest and post judgment interest at 6%. An appeal lies to a judge of the Divisional Court as of right.

[2] This is a motion to validate service and filing of the Notice of Appeal or alternatively to extend time for service and the filing of the Notice of Appeal.

[3] The defendant had 30 days to effect service of a Notice of Appeal. Due to inadvertence and a misapprehension of the Rules on the part of the defendant’s legal representative, the Notice of Appeal was mailed to the plaintiff in the UK on August 19, 2008; on August 20, 2008 the law firm received the plaintiff’s appointment for an assessment; and on August 21, 2008, the law firm attempted to fax the Notice of Appeal unsuccessfully.

[4] Because service by mail was not effective for 5 days, service by that method was effected out of time, some two days after the August 22, 2008 deadline. The plaintiff deposes that the Notice of Appeal mailed August 19, 2008 never arrived and the fax was largely unsuccessful. When the defendant’s legal representative spoke with the plaintiff on August 22, 2008 and asked whether she had received their Notice of Appeal, he believed that the plaintiff advised that she had received it earlier that day. The plaintiff, however, had received a partial fax and believed that she had said she ‘would’ receive the Notice of Appeal. In any event, she was aware that a Notice of Appeal had been sent before the expiry of the time to appeal and actually received a subsequent mailing of the Notice of Appeal on August 27, 2008.

[5] Based upon his understanding of the telephone conversation, the defendant’s legal representative filed an affidavit indicating the plaintiff had actually received notice on August 22, 2008, filed within time, and ordered the transcript and paid in advance. The Registrar subsequently returned the filing based upon inadequate service.

[6] Under Rule 16.08 (a), the court may validate the service where it is satisfied that the document came to the notice of the person to be served. In this case, while the plaintiff was aware of the notice of appeal within the time, I am not satisfied that she actually received the notice within the appropriate time period.

[7] However, an extension of time may be granted under Rule 3.02(1) (2) and (3) on such terms as are just. The court must consider the ‘justice of the case’; factors to be considered include the continuing intention to appeal; the length and reason for the delay; the prejudice to the opposing party arising from the delay; and the merits of the appeal. See Frey v MacDonald (1989) 33 C.P.C. (2d) 13 (Ont.C.A.). See also Duca Community Credit Union Ltd. v. Giovannoli 2001 24017 (ON CA), [2001] O.J. No.36.

[8] In this case I am satisfied that the defendant demonstrated a good faith attempt to serve the Notice of Appeal within the period to appeal and has maintained a firm intention to appeal this decision. The delay in service was inadvertent by counsel and the delay was a matter of days. I am not satisfied that the plaintiff is prejudiced by an extension of time for service given that she was aware of the Notice of Appeal and of the attempt to serve her within the prescribed time period, even if she did not actual receive the Notice of Appeal until a relatively short time later.

[9] Finally, the ‘justice of the case’ test includes the consideration that the defendant should not be denied its right of appeal if the appeal has some merit. The reasons for judgment are not available in this case and it is difficult to assess the merits of an appeal based upon the evidentiary foundation in this motion. However, an appeal is available as a matter of right and the Notice of Appeal sets out grounds, relating to fraudulent misrepresentation and interest rates, that are at least arguable based upon the award in the trial endorsement. I cannot say that there is so little merit in the proposed appeal that the appellant should be denied its important right of appeal.

[10] Given the defendant’s clear intention to appeal, the attempt to serve the Notice of Appeal within time, the good faith filing of the appeal, the payment and ordering of the transcript, the fact that the delay was a matter of days, due to inadvertence, and the plaintiff was not prejudiced by the delay, in my view the ‘justice of the case’ requires that the appeal be dealt with on the merits. The time to serve the Notice of Appeal and to file the appeal is extended.

[11] Costs are left to be determined by the judge hearing the appeal.

A. KARAKATSANIS J.

Released: