COURT FILE NO.: 284/08

DATE: 20090428

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

DR. MICHAEL VENNERI

Appellant

• and -

COLLEGE OF CHIROPRACTORS OF ONTARIO

Respondent

In Person

Megan E. Shortreed, for the Respondent, College of Chiropractors of Ontario

HEARD at Toronto: April 28, 2009

ORAL REASONS FOR DECISION RENDERED: April 28, 2009

ORAL REASONS FOR decision

Echlin J.:

1This is an application by Dr. Michael Venneri seeking to set aside the Order of Assistant Registrar R. Skraban of March 2, 2009, dismissing Dr. Venneri’s appeal of the Cost Award of $128,000.00 of May 7, 2008.

2The parties have agreed that the test I should apply is as outlined by Himel J. in Viola v. Hornstein, [2007] O.J. No. 4420 at paragraph 5 citing: Chuang v. Royal College of Dental Surgeons (Ontario) (2005), 77 O.R. (3d) 280:

(a) the existence of a bona fide intention to appeal within the time period;

(b) the length of the appellant’s delay in pursuing the appeal; and

(c) the merits of the appeal.

Ms. Shortreed conceded (c) above. I am left with making a determination on (a) and (b).

3The cost award of $128,000.00, one of the largest in the history of the College, was rendered on May 7, 2008. A Notice of Appeal dated May 2, 2008, was delivered shortly thereafter. On August 11, 2008, Low J. ordered that the appeal be perfected by September 11, 2008. On August 15, 2008, Dr. Venneri moved to vary the Order of Low J. having regard for various and sundry appeals. On December 3, 2008, this motion was abandoned. On March 2, 2009, the Assistant Registrar dismissed the Venneri cost appeal for delay and awarded $750.00 for costs.

(a) Bona Fide Continuing Intention:

4On the evidence presented, I am satisfied that Dr. Venneri had a bona fide and continuing intention to appeal both within the time period and thereafter. This is evidenced by the Motion to Vary which was abandoned on December 3, 2008 and e-mails and letters dated February 29, 2009 and April 21, 2009.

5While some time has passed, Dr. Venneri was not called upon to pay any costs until March 18, 2009, slightly over a month ago.

6I am satisfied that Dr. Venneri has established a bona fide continuing intention to appeal this significant cost award.

(b) Length of Delay:

7Whether the delay be measured from September 11, 2008 (7 months); from December 3, 2008 (4½ months); or between December 3, 2008 and February 26, 2009 (2½ months), in my view the delay is inconsequential and to be distinguished from the delay in DiBello v. Park Travel Inc., [2001] O.J. No. 2826 (S.C. Div. Crt.) of nearly 2 years.

8I am satisfied that Dr. Venneri has discharged his burden in dealing with the delay in pursuing the appeal.

(c) Merits:

9The College has conceded the third prong regarding the merits of the appeal.

10I therefore grant Dr. Venneri’s application to set aside the order of the Assistant Registrar of March 2, 2009 on the following conditions:

1. That Dr. Venneri pay to the College the sums of $2,500.00 (per Low J. (August 22, 2008)) and $750.00 (per Assistant Registrar Skraban (March 2, 2009)), representing a total of $3,250.00 by 12:00 noon on Thursday, May 28, 2009; and

2. Dr. Venneri provide the College’s counsel with cheques in the amount of $1,000.00 dated March 18, 2009, and the 18^th^ of each month following through to February 18, 2010 by 12:00 noon on Wednesday, May 6, 2009, as installment payments towards the eventual cost award.

3. That Dr. Venneri perfect the appeal in question (which from this vantage point would require very little) by 12:00 noon on May 28, 2009.

11Having regard for all of the circumstances giving rise to this application, I make no order as to costs.

12Should Dr. Venneri fail to strictly comply with the 3 conditions listed above, the College shall be at liberty to apply to the Divisional Court forthwith upon such default to obtain an order dismissing the application to set aside the Order of the Assistant Registrar and thereby reinstating same.

Echlin J.