COURT FILE NO.: 4534/98
DATE: 2009-06-26
SUPERIOR COURT OF JUSTICE – ONTARIO (Divisional Court)
(Hamilton)
RE: Plouffe v. Blackmore
BEFORE: J.A. Ramsay J.
COUNSEL: Mr G.P. McKenna for plaintiff moving party; Mr M.G. Emery for defendant
E N D O R S E M E N T
[1] On October 29, 2001, Templeton J. gave the plaintiff leave to appeal to the Divisional Court from an interlocutory order made by Dunn J. The plaintiff’s solicitor (not Mr McKenna) omitted to file the notice of appeal within the time specified by the rules. The plaintiff now moves under Rule 3.02(3) for an extension of time to file the notice of appeal.
[2] The plaintiff cohabited with the defendant in a domestic relationship from 1995 to 1997. She pleads that in 1996 and 1997 the defendant assaulted and battered her, and that she has a constructive trust in the domestic residence, of which the defendant is the legal owner. In 1997, the defendant was acquitted or discharged with respect to criminal charges arising from the alleged assaults when the plaintiff testified in criminal proceedings that the assaults had not occurred. She now pleads that the defendant coerced her into making these recantations.
[3] In June 1998, the statement of claim was issued. The defendant defends on the basis that the assaults did not occur, and counter-claims for defamation. He also denies that the plaintiff made a contribution to the value of his property that would entitle her to a constructive trust.
[4] The plaintiff sought production of records of two family counsellors with whom she and the defendant met before the criminal charges were laid. The plaintiff says that the defendant admitted during the counselling sessions that he had physically abused her. Dunn J. declined to order production of the counsellors’ notes. Templeton J. found that there was serious reason to doubt the correctness of that decision, and that the question was of general importance.
[5] The notes of one of the counsellors, Ms Wells, were destroyed in a flood in 2002. The appeal would, then, concern the production of the notes of the other counsellor, Ms Belleghem.
[6] Within the period prescribed by the rules, the plaintiff served the notice of appeal. Her lawyer, however, neglected to file it. The normal activity took place on the file until 2004. At that point, both sides let the file lie dormant until 2007.
[7] On January 19, 2007 the plaintiff’s new lawyer discovered that the notice of appeal had not been filed. On February 22, 2007, he served the appeal book, compendium and factum on counsel for the defendant. On March 13, 2007 the defendant moved to dismiss the action for delay. The plaintiff’s lawyer decided to defend the motion for delay before applying for an extension of time for the appeal, because he did not want to risk wasting resources. If the action had been dismissed, the appeal would have been moot. In his place, I might have done otherwise, but his the decision not to move immediately for an extension was not unreasonable, and it explains the delay.
[8] On June 20, 2007, Harris J. dismissed the motion to dismiss the action for delay [2007 CarswellOnt 4749]. The defendant applied for leave to appeal. On December 3, 2007 the defendant served notice of abandonment of that application. Following a further few months that were taken up with the defendant’s change of solicitor and correspondence asking for consent to an extension, the plaintiff filed the present motion on August 5, 2008. The delay since then is attributable to the scheduling of the present motion by the parties.
[9] In determining whether to extend the time for filing a notice of appeal the court will generally consider whether the appellant formed an intention to appeal within the relevant time period, the length of the delay, any prejudice to the respondent, and the merits of the appeal. The general rule that the appellant must have formed an intention to appeal within the relevant time period and must provide a reasonable explanation for any subsequent delay is subject to a broader principle that an extension should be granted if the justice of the case requires it: Byers v. Pentex Print Masters Industries Inc., 2003 42272 (ON CA), [2003] O.J. No. 6 (CA), ¶46.
[10] As far as I am concerned, the ruling of Templeton J. establishes that the appeal has enough merit to be argued. The plaintiff satisfied the test set out in Rule 62.02. I decline the invitation to go further than that. Assessment of the likelihood of success is unnecessary.
[11] The plaintiff obviously formed an intention to appeal within the relevant period. But did she maintain that intention over all these years? If did not, she should not be granted the extension: Frey v. MacDonald, 1989 CarswellOnt 343 (Blair J.A.), ¶3. On this point the plaintiff has deposed not a word. The sum total of the evidence filed on her behalf on this question is the affidavit of her lawyer, Mr Smye, who deposes, “…I received firm instructions from the plaintiff to appeal the said order, including seeking leave to appeal it. Those instructions from the plaintiff have never changed or wavered, to this day.” While I do not doubt that the lawyer is deposing truthfully, this one conclusory sentence is a very thin basis upon which to assess eight years’ worth of intention. I do not know whether or how often the plaintiff inquired about the progress of the case, including the appeal, how she felt about the three years of inaction, or why she did not instruct her lawyers to prosecute the case more seriously. At the end of the day, however, I am prepared for one reason only to accept that she maintained her intention to appeal: without the counsellor’s notes the claim for battery is scarcely tenable. The plaintiff is on record taking two diametrically opposed positions on whether the battery occurred. Without corroboration, she has little prospect of establishing on the preponderance of the evidence that one is true and the other false.
[12] The length of the delay is huge. I take from the authorities that the length of the delay should be weighed in the context of the other factors, including prejudice. Prejudice could be occasioned by a relatively short delay. On the other hand, a party could be in a position to have a fair trial even in the face of a long delay. In the present circumstances prejudice should be presumed, unless the presumption is rebutted.
[13] Between them, counsel for both parties have canvassed possible areas of prejudice thoroughly. Most of the potential problems do not relate to the appeal. They arise because of the length of time the matter will have taken before trial, but the appeal will not delay the trial more than a few months. Delay up to 2007 was considered by Harris J. Since then, the matter has been proceeding. The appeal will not add significantly to the delay.
[14] Since the ruling of Harris J., the plaintiff’s stepfather has died. The defendant deposes that this will cause him prejudice: “I intended to be able to cross-examine [the stepfather] at the trial of this action specifically, (i) with respect to discussions I had with him in December of 1995 concerning the fact that on the day of the alleged incident in 1995, Ms. Plouffe appeared distraught and was acting in threatening manner towards me and (ii) that on April 3, 1997, he was a witness to Ms Plouffe kicking at me. This evidence I believe would have been critical to providing context for any statement allegedly made in sessions with either Ms Belleghem or Ms Wells. I will no longer have the benefit of this evidence at trial.”
[15] It appears, then, that the defendant did not intend to call this witness at the trial. If the plaintiff were to call him, the defendant would have cross-examined with a view to establishing two factual matters. I do not see how these facts would provide context for statements made in counselling sessions. Nor are they so significant that their absence would cause the defendant prejudice.
[16] The defendant also raises the destruction of Ms Wells’s notes. He says that Ms Wells was the final therapist, so her notes would have likely been more comprehensive. I do not accept that proposition, and I do not think that it has anything to do with prejudice in any event.
[17] The defendant’s remaining points have to do with the completeness of the notes and Ms Belleghem’s likely inability to remember enough to be able to interpret them. That really has to do with admissibility and weight, rather than production. If the appeal succeeds, the notes will be produced. They will not necessarily be admitted into evidence, or relied upon by the trier of fact.
[18] I conclude that the presumption of prejudice has been rebutted.
[19] With respect to the justice of the case, I consider it important that this is an interlocutory appeal. This is not a case in which a defendant had reason to believe that the matter was behind him. The action has continued, and will continue, appeal or no appeal. Second, the evidence that is being sought is important. Finally, the defendant made no attempt to have the appeal dismissed in 2002, when the time for perfecting it would have expired if the notice of appeal had been filed. He could not have had a non-existent appeal dismissed, but if he had tried, that would have shown that he was concerned about the delay at the time.
[20] In the result, I make the following order:
time for filing the notice of appeal from the order of Dunn J. dated August 1, 2001 is extended to July 6, 2009;
on consent, service of the notice of appeal on the defendant having been admitted, proof of service thereof is dispensed with.
[20] My tentative inclination in the circumstances would be to make no order as to costs, except that any party who cross-examined on an affidavit should pay the costs of the other party with respect thereto on a partial indemnity basis, as contemplated by Rule 39.02(4)(b). If the parties do not agree on costs, either party may submit written submissions consisting of a memorandum in factum form not exceeding five pages in length, to which may be appended a bill of costs and an offer to settle, if any. The deadline for filing such written submissions is 4 pm on July 6, 2009. A party who is served with written submissions to costs may reply in the same form by 4 pm on July 9.
Ramsay J.
RELEASED: 2009-06-26
COURT FILE NO.: 4534/98
DATE: 2009-06-26
SUPERIOR COURT OF JUSTICE – ONTARIO (Divisional Court)
(Hamilton)
RE: Plouffe v. Blackmore
BEFORE: J.A. Ramsay J.
COUNSEL: Mr G.P. McKenna for plaintiff moving party; Mr M.G. Emery for defendant
ENDORSEMENT
DATE RELEASED: 2009-06-26