NEWMARKET COURT FILE NO.: CV-09-94682-00
DATE: 2009-07-22
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Derek Americo Cozzi, Dean Cozzi Appellants
- and -
Amber Cordeiro, Katrina Sheppard And Ian Tops Respondents
Counsel: H. Sobel, for the Plaintiffs J. Bida, for Ian Tops T. Bracken, for Katrina Sheppard J. Cordeiro, for Amber Cordeiro
HEARD: July 15, 2009
REASONS FOR DECISION
LAUWERS J.
[1] This is a motion by the appellants for an extension of time to file a Notice of Appeal to the Divisional Court from the decision of Deputy Judge Davis in Whitby Small Claims Court, dated August 31, 2008.
[2] In this case, Deputy Judge Davis dismissed a motion by the appellants to set aside an order issued by the court clerk dated September 11, 2007, dismissing the claim as abandoned and refused to restore the matter to the trial list.
[3] Deputy Judge Davis issued his decision on August 21, 2008. On October 3, 2008, counsel for the respondent Ian Tops, Mr. Bida, sent a letter to Mr. Cozzi requesting payment of costs of $150 pursuant to the Order of Deputy Judge Davis. He followed this up by letter dated December 2, 2008. Mr. Cozzi responded by letter dated December 15, 2008, in which he indicated that he had not received Mr. Bida’s letter of October 3, 2008, nor the order from the court and requested copies, which Mr. Bida sent by fax on December 16, 2008.
[4] Mr. Cozzi does not provide personal evidence. Instead counsel, Mr. Sobel relies on an affidavit sworn by Mr. Cozzi’s assistant Katherine Lee. She recites the facts set out above, but provides no explanation about the fax markings on the October 3, 2008 letter, which indicate that it was successfully sent to Mr. Cozzi’s office. She states:
The appellants were first advised through their counsel on December 16, 2008, that the court’s Reasons for Decision rendered by the Deputy Judge of the Whitby Small Claims Court had been released on or about August 21, 2008.
[5] In response to this, the appellants served a Notice of Appeal, dated January 16, 2009, although Ms. Lee’s affidavit notes:
The appellants’ Notice of Appeal to the Divisional Court in the within matter was served upon the respondents and submitted to be filed with the Divisional Court on January 15, 2009, that is, within 30 days of the appellants having received the court’s Reason for Decision.
[6] Mr. Sobel had no explanation for the difference between the date set out in the Notice of Appeal and the date of the Notice cited in Ms. Lee’s affidavit, nor for the fact that the effort to file the Notice of Appeal was not made within 30 days of December 16, 2009, but slightly beyond.
[7] Ms. Lee goes on to explain that the Divisional Court would not accept the filing of the Notice of Appeal because it was more than 30 days after the Reasons for Decision of the Whitby Small Claims Court had been rendered; leave of the Divisional Court to extend time within which the Notice of Appeal could be filed was required.
[8] At the commencement of the motion, counsel for the appellants filed the affidavit of the appellant, Dante Beau Cozzi, in which he states:
Neither I nor the other plaintiffs herein were ever aware of any warning from the court about the impending procedural dismissal of our claims.
Once we had received the decision of the Deputy Motions judge dismissing our motion to set aside the procedural dismissal, we always intended to appeal from that decision after we received it.
[9] My authority to extend time is found in rule 3.02. In Kefeli v. Centennial College of Applied Arts & Technology (2002), 23 C.P.C. (5th) 35, Simmons J.A. stated at paragraph 14:
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 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 the broader principle that an extension should be granted if the justice of the case requires it. Frey v. MacDonald (1989), 33 C.P.C. (2d) 13 (Ont. C.A.)
[10] These factors are all relevant but not all of them must be found to be applicable for leave to be granted. I address each in turn.
[11] The affidavit of Dante Beau Cozzi provides the only evidence of the intention of the appellants to appeal the decision of the Deputy Court Judge within the appeal period. I accept this evidence of intention.
[12] The appellants must explain the delay. They knew on or about January 16, 2009, that they were required to seek leave of the Divisional Court to extend time for filing the Notice of Appeal. The affidavit of Katherine Lee was sworn on March 20, 2009. The Notice of Motion is dated March 20, 2009. The motion record, however, is dated May 11, 2009, and it set the motion date for June 4, 2009. Approximately four months elapsed between the time that Mr. Cozzi became aware of the need for leave to extend time and the formal pursuit of this motion. Mr. Sobel could provide no explanation for this delay and there is no evidence about it. In Bratti v. Wabco Standard Trane Inc. (1994), 1994 1261 (ON CA), 25 C.B.R. (3d) 1 (Ont. C.A.), Laskin J.A. stated at paragraph 8:
While the respondents on this motion have not submitted that they have been unduly prejudiced by the delay, it seems to me that there is an obligation on a party seeking the indulgence of the court to provide a reasonable explanation for his failure to move earlier. This applicant has not done so.
[13] On the issue of prejudice, the respondents cite the reasoning of Sharpe J.A. in Marche D’Alimentation Denis Theriault Ltee. v. Giant Tiger Stores (2007), 2007 ONCA 695, 87 O.R. (3d) 660 at paragraph 25:
These rules and cases rest upon an important principle: there is a strong public interest in promoting the timely resolution of disputes. “The notion that justice delayed is justice denied reaches back to the mists of time…. For centuries, those working with our legal system have recognized that unnecessary delay strikes against its core values and have done everything within their powers to combat it”: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at paragraph 146. The interest of litigants involved in the civil justice system in timely justice is obvious. Litigants are entitled to have their disputes resolved quickly so that they can get on with their lives. Delay multiplies costs and breeds frustration and unfairness.
[14] In this case, the underlying events on which the original claim was based occurred in May, 2006. The relevant limitation period has expired. Mr. Tops expresses frustration that “Twenty months after that dismissal (in Small Claims Court), this proceeding is still hanging over my head. This action relates to events that took place more than three years ago.”
[15] Mr. Bida refers to Ovari v. Isaacs, 2006 CarswellOnt. 9547; upheld at 2007 CarswellOnt. 5557, for the proposition that where the limitation period has expired, there is presumption of prejudice to the Defendants. However, as Laskin J. noted in Bratti, actual or undue prejudice related to the delay is not required.
[16] But prejudice has a few dimensions. If leave is granted, the matter will not be considered by the Divisional Court for some months. If the appeal is allowed it will then go back to the Small Claims Court for trial. The trial date will literally be years late in a court based on the concept of expedition. This will be prejudicial to the respondents in a way that cannot be compensated in costs. As Deputy Judge Davis noted in his reasons: “Defendants have now moved on to university and witnesses are not readily available. While the delay is not as extensive as in other cases reviewed by the Defendants in oral argument, nevertheless the resuscitation of the action would have a negative effect on them. (page 22)
[17] Another dimension of prejudice is systemic. In this case Mr. Cozzi has been unwilling or unable to conduct himself according to the rules. His repeated patterns of disrespect for the system of justice constitute prejudice to the system which should not be countenanced.
[18] The last factor to be assessed concerns the merits of the appeal. The reasoning of the Deputy Judge leads me the conclusion that the merits of the proposed Appeal are dubious.
[19] It is no small irony in the context of this motion that Deputy Judge Davis was required to take similar factors into account in deciding whether to set aside the administrative dismissal of a Small Claims Court action for the appellants’ delay in moving the action forward and to schedule it for trial.
[20] He assessed four factors. He noted that notice of approaching dismissal dated July 17, 2007, was sent to Mr. Cozzi. On September 11, 2007, the court clerk issued and sent the order dismissing the claim as abandoned. Three months after the issuance and receipt of the order, Mr. Cozzi wrote to the defendants “confirming he contacted the court clerk on November 28, 2007, (two months after the receipt of the order) to inquire about restoring the matter on the trial list.” The decision of Deputy Judge Davis, page 4-5.
[21] Mr. Cozzi filed an affidavit in support of his motion for relief before Deputy Judge Davis sworn by his assistant Katherine Lee on June 16, 2008. It provided:
I have personal knowledge of or have been informed by Peter B. Cozzi and verily believe the following to be true:
The settlement conference in this matter was held on May 24, 2007.
At the settlement conference, all counsel agreed that the trial in this matter would be held on December 19 and 20, 2007.
The trial dates of December 19 and 20, 2007 were confirmed by the court staff at the settlement conference with the assistance of the settlement conference judge.
Due to inadvertence, the Plaintiff did not submit the $100.00 fee required to set a trial date.
An order dismissing claim as abandoned was issued on September 11, 2007. A true copy is attached as Exhibit “A”.
By a letter dated December 3, 2007, I sent a letter to counsel for the Defendants enclosing a consent for clerk’s order to restore this matter to the list. A true copy is attached as Exhibit “B”.
By a letter dated December 5, 2007, counsel for Ian Tops stated that they would not consent to the clerk’s order. A true copy is attached as Exhibit “C”.
By a letter dated December 10, 2007, counsel for Katrina Sheppard stated that they would not consent to the clerk’s order. A true copy is attached as Exhibit “D”.
[22] Exhibit “B” to her affidavit was a letter from Mr. Cozzi to counsel dated December 3, 2007, in which he states:
I subsequently received a notice of approaching dismissal dated July 17, 2007. I was the only counsel noted on same. I assumed this was a mistake, because the trial date had been set at the settlement conference.
I subsequently received an order dismissing the action dated September 11, 2007. Again, I was the only counsel noted on the order.
[23] In the face of this evidence, Deputy Judge stated:
There is a reference to inadvertence that created the entire situation, but that is not an explanation for the ensuing delay. Had there been some evidence in the year since the issuance of the Notice, or in the time since the Order itself, that some effort was being made to comply with the various procedural rules, the Court might have had a different view, but there is no such evidence. There was absolutely no explanation given as to why no steps were (actively) taken to resolve the Notice on a timely basis, why the delay in the filing of this motion that arose after the Order, or why the delay after receipt of the Refusal Letters (decision of Deputy Judge Davis, pages 16, 17).
[24] He concluded that there was not really inadvertence in this case, but negligence.
[25] Concerning the issue of prejudice to the defendants, Deputy Judge Davis said:
The court must apply the test which requires the Defendants to lead evidence of actual prejudice. In this matter, the “delay” factor has resulted in the “prejudice”; the Defendants have now moved on to university and witnesses are not readily available. While the delay is not as extensive as in other cases reviewed by the Defendants in oral argument, nevertheless the resuscitation of the action would have a negative effect on them. (p. 22)
[26] The Deputy Judge concluded:
The Plaintiffs have failed to satisfy each of the first three branches of the Reid test. The litigation delay from the institution of the action until the deadline under the Notice resulting in the Order has not been adequately explained. There is no evidence the deadline was missed due to inadvertence.
Most importantly, after the dismissal came to the attention of the Plaintiffs’ solicitor, he did not move promptly to set it aside. Looked at in context, it is clear that the Plaintiff’s solicitor gave little attention to this file or to the requirements of the Rules. The solicitor was not taking timely steps to advance the litigation, did not inform himself of the Rules and his obligations thereunder, and it is unclear whether the failure to ensure that the Motion was brought in a timely manner, and the dismissal of the action, were due to negligence or a deliberate decision not to give the file adequate priority. In the view of this Court, however, the dismissal of this action arose as a result of actions or inaction that went beyond “mere inadvertence”(p.26-27).
This last paragraph applies equally to Mr. Cozzi’s conduct when he learned that leave of the Divisional Court was required.
[27] Mr. Bida argues that the clients must bear responsibility for the acts of their counsel where those acts go beyond mere inadvertence: Marche D’Alimentation, supra, paragraphs. 27-30.
[28] I do not see that the Deputy Judge committed any glaring errors in reasoning or in finding facts. The merits of an appeal of the decision are doubtful.
[29] Mr. Cozzi’s tardiness led to the administrative dismissal of the small claims court action and the need for the proceedings before the Deputy Judge. His tardiness in dealing with this motion is of the same type. The four factors referred to by Simmons J.A. in Kefeli v. Centennial College of Applied Arts & Technology, supra, were an intention to appeal within the relevant time period, the length of delay, any prejudice to the respondents, and the merits of the appeal. Only the first factor favours the appellants. The others, especially the frankly unreasonable and not satisfactorily explained delays, favour the respondents. I therefore dismiss the motion to extend the time within which this matter can be appealed to the Divisional Court, with costs.
COSTS
[30] The appellants shall pay costs for Katrina Sheppard and Ian Tops in the amount of $1,000 each payable to the firms of their respective counsel.
Lauwers J.
DATE: July 22, 2009