COURT FILE NO.: DC-08-00000577-0000

DATE: 20090217

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: Darkeff Insurance Brokers Ltd. and Mary Darkeff and Walter Darkeff

DEFENDANTS/APPELLANTS

• AND -

SYRUS AGHAZADEH

PLAINTIFF/RESPONDENT

BEFORE: Justice David Aston

COUNSEL: Mary Darkeff, the Appellant, personally.

HEARD AT TORONTO: In Writing on February 17, 2009

E N D O R S E M E N T

Aston J.

[1] Mary Darkeff brings this motion to set aside an Order Dismissing Appeal signed by the Registrar and to extend the time for perfecting the appeal. This motion is not on consent but it is unopposed.

[2] The moving party did not explicitly state that she is acting on behalf of the other defendants. She has no authority to act on behalf of a corporate defendant, as the rules require corporations to be represented by lawyers unless leave is otherwise granted.

[3] The Notice of Appeal does not identify whether the appeal is to the Divisional Court or the Court of Appeal. Both are cited. I will assume for the purposes of this motion that the appeal is properly to the Divisional Court because I have no jurisdiction to grant the relief sought if the appeal is properly to the Court of Appeal.

[4] The grounds set out in the Notice of Appeal are deficient and insufficient on their face.

[5] There is nothing in the motion material to identify what judgment or order was made by Roberts J on November 10^th^, whether it was on a motion or after a trial or whether it was a final or an interlocutory order.

[6] The appellants' Certificate Respecting Evidence (Form 61C) is also deficient because it simply cites as the "evidence" required for the appeal "court file number 05-CV-284232PD3".

[7] The Registrar's Order Dismissing Appeal was issued January 14, 2009 for failure to perfect the appeal in a timely fashion, as required by rule 61.09. A warning notice had been given under rule 61.13 before that Order was made. At the time the Order was made, the thirty days under 6l.09(a) had run out and nothing had been filed to indicate that a transcript was required for the appeal or was necessary for the appeal. However, a transcript of the proceedings before Roberts J was apparently ordered on December 12, 2008. The time for perfecting an Appeal under rule 61.09(b), where a transcript is required, is extended to 60 days after receiving notice that the transcript has been transcribed.

[8] It is clear from the material that the moving party had an intention to appeal the Order of November 11, 2008 within the time for appeal. The time to order the transcripts was apparently only out of time by one day. It is therefore appropriate to grant an indulgence and extend the time for perfecting the appeal so long as other steps are taken to correct the other deficiencies noted herein.

[9] The Registrar's Order of January 14, 2009 dismissing the appeal is set aside. The time for perfecting the appeal is extended to 60 days after receiving notice the transcript has been transcribed, conditional upon the following steps in the next 30 days:

(a) Walter Darkeff is to serve and file written confirmation that Mary Darkeff is acting on his behalf, and he is also to acknowledge his potential liability for costs, failing which he is not to be included in the appeal;

(b) Darkeff Insurance Brokers Ltd. is to retain counsel or obtain an Order that it may be represented by someone other than a lawyer or, alternatively, shall not be included in the appeal;

(c) The Notice of Appeal shall be amended, served and filed, and it shall:

(i) identify the Divisional Court as the proper forum;

(ii) set out the nature of the Order being appealed;

(iii) set out proper grounds for appeal.

[10] If these steps are not taken in the next 30 days, the appeal is dismissed.

[11] There shall be no costs of this motion.

Aston J.

DATE: February 17, 2009