Court File and Parties
Released: 20091014
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Re: The Law Society of Upper Canada (Respondent) v. Marshall Kazman (Appellant/Applicant)
Before: Karakatsanis J.
Counsel: Marshall Kazman, representing himself, the moving party Bill Holder, for the Respondent
Heard: At Toronto: October 9, 2009
ENDORSEMENT
[1]
Introduction
The moving party, the appellant, seeks to set aside the Order of the Registrar dismissing his appeal for failure to perfect the appeal within a year of filing the Notice of Appeal. He seeks additional time to perfect the appeal, leave to file a Supplemental Notice of Appeal, and various relief relating to the costs award. Time did not permit and I did not deal with the relief relating to the costs award.
[2]
Background
The hearing panel disbarment order was dated September 13, 2006; the Law Society Appeal Panel affirmed that decision on May 9, 2008. Mr. Kazman was represented by counsel throughout those proceedings. The Notice of Appeal to the Divisional Court was served June 9, 2008. The appeal ought to have been perfected by August 8, 2008. The appellant took no steps for 11 months until he received a notice from the Registrar proposing to dismiss his appeal. The appellant then served a 95 page factum and an Appeal Book and Compendium that reproduced his earlier material and was not responsive to the Notice of Appeal in the Divisional Court. The Supplementary Notice of Appeal was included in the Appeal Book and raises arguments and issues for the first time. He attempted to file the transcript but did not have three copies.
[3]
Positions of the Parties
The LSUC opposes the motion on the basis that Mr. Kazman did not have an intention to appeal given his failure to respond to the LSUC’s repeated written inquiries whether he intended to pursue the appeal; that he gave no reason for the delay; and that there was no merit to his appeal.
4Mr. Kazman said his failure to perfect was inadvertent and that he found it emotionally difficult to deal with. He was prepared to live with whatever timetable was imposed. He submitted that he would suffer irreparable harm and the LSUC was not prejudiced by giving him an opportunity to perfect.
[5]
Legal Framework
The well established factors are whether:
the appellant had a bone fide intention to appeal and perfect the appeal within the time limit;
there is a reasonable explanation for the delay;
the justice of the case requires an extension.
The justice of the case requires consideration regarding the merits of the appeal.
[6]
Analysis
The appellant appears to have had an intention to perfect the appeal. While his explanation is weak, it is nonetheless plausible that he found it difficult to perfect the appeal acting for himself. The threshold relating to the merits is not a high one, particularly in these circumstances given the irreparable harm he would suffer with the dismissal of the appeal. I am prepared to exercise my discretion and give Mr. Kazman one final chance to perfect this appeal. The Order Dismissing the Appeal will be set aside provided he meets the new deadline. Time to perfect the appeal, in accordance with the rules, is extended to November 30, 2009. Failure to comply will result in the dismissal of his appeal by the Registrar on affidavit evidence and without further notice.
7The Supplemental Notice of Appeal raises new issues, including a Charter issue more than one year after the Notice of Appeal. Leave to file that Supplemental Notice of Appeal is denied.
[8]
Costs
Mr. Kazman seeks no costs and costs are not appropriate in the circumstances.
Karakatsanis J.
Released: October , 2009