Court File and Parties

COURT FILE NO: 521/09

DATE: 20091117

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: David Feder, Plaintiff/Respondent

A N D: Peter Duncan, Defendant/Applicant

BEFORE: KARAKATSANIS J.

COUNSEL: Peter Duncan, the defendant/applicant in person David Schatzler, for the plaintiff/respondent

HEARD: November 17, 2009

E N D O R S E M E N T

[1] The defendant/applicant seeks an extension of time to appeal from the decision of Deputy Judge Ashby of the Small Claims Court dated February 17, 2009 setting aside a default judgment on conditions.

[2] 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] O.J. No.36.

[3] The plaintiff issued the claim in March 2007 and obtained default judgment on July 11, 2007. In June 2008, the Small Claims Court found the defendant in contempt of court for failure to attend two judgment debtor examinations and issued a warrant of arrest. The defendant did not move to set aside the default judgment until after he was arrested in October 2008. On February 17, 2009, the Deputy Small Claims Court Judge ordered that the default judgment be set aside on condition that the defendant file a statement of defence and pay $5,000 into court by March 20, 2009.

[4] Following this Order, the defendant attended on four different dates for judgment debtor examinations and each time sought adjournments on medical grounds. The deputy judge indicated that no further adjournments would be granted and on the following date, September 2, 2009, the defendant advised he would be bringing a motion to set aside the Order of February 17, 2009. He brought a motion on October 29, 2009 to set aside the order and the deputy judge advised he could not set aside the order. The defendant served this Notice of Motion to extend time to appeal on November 4, 2009, the same date set for a further examination. The plaintiff has appeared more than 12 times in the Small Claims Court in this matter.

[5] The defendant takes the position that he has always wanted to appeal or set aside the decision as he is unable to pay the $5,000 into court. He states that he obtained advice from duty counsel in August 2009 but was advised to move to set aside the Order in the Small Claims Court. Further he denies he owes any money to the plaintiff and seeks an opportunity to file a statement of defence and to prove he does not owe any money.

[6] In this case I am not satisfied that the defendant has demonstrated a continuing intention to appeal. The defendant’s bald assertion regarding his intentions is not consistent with his conduct at least until August and September 2009. He attended at the judgment debtor examinations on four occasions subsequent to the Order and sought adjournments on other grounds. The defendant took no steps to challenge the decision until after he was told that there would be no further adjournments of the judgment debtor examinations. I am satisfied that this appeal is part of a pattern of delay on the part of the defendant/applicant to the prejudice of the plaintiff/respondent.

[7] 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. Apart from the defendant’s bald denial relating to the claim, there is no basis upon which to assess the merits of the case itself. The defendant states he wishes to appeal the Order as he is unable to pay the $5,000. He has not articulated any error on the part of the Deputy Judge. With respect to the Order appealed from, the Deputy Judge was aware of the history of the action and the defendant’s position that he could not afford to pay.

[8] For all these reasons, I am not prepared to exercise my discretion to extend time to appeal. Leave to extend time to appeal is denied. The plaintiff/respondent shall have costs in the amount of 1,800 all inclusive, payable within 30 days.

A. KARAKATSANIS J.

Released: