Court File No.: 283/09
Released: 20090930
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Re: Benito Di Biase (Plaintiff/Respondent) v. Pasquale Moscardelli (Defendant/Appellant)
Before: Karakatsanis J.
Counsel: Tracy Warne, Bobbi M. Olsen, for the Plaintiff/ Respondent, the moving party
Hossein Niroomand, for the Defendant/ Appellant
Heard at Toronto: Sept 18, 2009
ENDORSEMENT
[1] The moving party, the plaintiff/respondent seeks to quash the Notice of Appeal dated June 5, 2009 from the decisions of Wilton-Siegel J awarding $10,000 general damages and $2,500 punitive damages against the defendant/appellant arising from what he found to be an unprovoked assault as well as the costs decision awarding costs of $29,990. The award of costs dealt not only with costs for the successful claim of the plaintiff but also costs for the dismissal of the defendant’s counterclaim. The judgment was dated July 23, 2008; the costs decision was dated April 7, 2009; and the Judgment was entered on May 8, 2009.
[2] The moving party submits that the Notice of Appeal is out of time. Rule 61.04(1) requires that the Notice of Appeal be served within 30 days of the order appealed from.
[3] The defendant/appellant submits that time to appeal both the decision on the merits and the decision on costs runs from the date the judgment was formally entered.
[4] The defendant/appellant’s submissions are not consistent with the well established principles in Byers (Litigation Guardian of ) v. Pentex Print Master Industries Inc. (2002), 62 O.R. (3d) 647.
[5] In Byers, the Ontario Court of Appeal examined whether time to appeal should run from the date of the pronouncement of the decision or from its formal entry: see paras. 17, 31 and 42. It held that the time runs from the date the decision is pronounced unless a substantial matter remains to be determined affecting the rights of the parties. When the court reconsiders matters properly encompassed in its decision on the merits before it is entered, and alters or modifies its merits judgment, the time for service of the notice of appeal from that judgment commences when the judgment has been altered or modified and entered.
[6] The Court of Appeal noted, by contrast, a request for costs raises legal issues collateral to the main cause of action and concluded at para 43:
Thus an unresolved issue of the costs of a proceeding at the time the proceeding is decided on its merits does not prevent the judgment on the merits from taking effect and becoming final and appealable from the date that it is rendered. Under rule 61.04(1), a notice appeal must be served within thirty days from that date. The subsequent resolution of costs does not extend the time for appealing the decision on merits to when the court has pronounced its costs judgment, from which a separate appeal lies ….
[7] Although in Byers the decision at issue had not been formally entered, the Court of Appeal directly addressed the issue of when time to appeal runs from the date of pronouncement and when it runs from the formal entry of a decision.
[8] Counsel for the defendant/appellant submitted that the costs represented a substantial question to be decided before the judgment on the merits could be entered. I am unable to accept that the magnitude of this cost award impacted upon the rights of the parties under the judgment on the merits for general and punitive damages. There is nothing that occurred after the decision on the merits on May 8, 2008 that in any way modified or altered that decision for general and punitive damages.
[9] As a result, I find that the time to appeal ran from the date of the decisions, rather than the date of formal entry of the judgment. It follows that the Notice of Appeal is out of time. I find that the Notice of Appeal was served almost 10 months after the date of the decision on the merits and almost 2 months after the date of the decision on costs.
[10] There was no cross motion to extend the time to appeal, but the appellant requested that I consider whether to do so. The well established factors are:
• 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 overarching consideration is whether the justice of the case requires that an extension be given.
[11] The appellant filed an affidavit stating it was always his intention to appeal but that he believed that he could wait until after the costs award was made and the decisions entered. He does not appear to have taken any steps in furtherance of that intention until after the time to appeal the costs decision had also expired. Although the belief that time runs from the date of the entry of the judgment may be genuine, the law was well settled that in these circumstances it runs from the date of the decision.
[12] Counsel for the moving party submits that he is prejudiced by the delay given the finding of the trial judge that he had suffered psychological harm as a result of the unprovoked assault. However, that is insufficient in my view to ground a claim that a delay at this point will prejudice the respondent beyond the prejudice that always flows from permitting an appeal to proceed. Accordingly, this factor does not weigh against the granting of an extension.
[13] With respect to the appeal of the July 23, 2008 decision on the merits, the justice of the case does not favour an extension of time given the length of the delay and the failure to identify how or why the trial judge erred in his assessment of general damages or in awarding punitive damages in this case. The Notice of Appeal states the trial judge erred in assessing punitive damages of $2,500 and that the quantum of general damages should be reduced from $10,000 to $3,000. The affidavit states that the decision was shocking, was not fair and reasonable and was out of line with similar cases. Counsel simply provided me with a number of cases during argument that he submitted illustrated that the appropriate range of damages was reflected in cases with greater physical harm awarding between $5000 and $8,500. Neither the Notice of Appeal, nor counsel in submissions, articulated further how the trial judge erred in assessing general damages or awarding punitive damages. I am not satisfied that the Notice of Appeal raises sufficient grounds on the merits to favour an extension of time, particularly given the length of delay in these circumstances. Accordingly, I do not grant an extension of time to appeal the decision on the merits dated July 23, 2008.
[14] With respect to the appeal against costs, clearly the length of the delay is not as significant. Once again the explanation appears to rest on a misunderstanding of well settled law.
[15] On the merits, the appellant submits the trial judge erred in his assessment of costs and they should be reduced to disbursements only. In fact, the trial judge awarded the plaintiff $10,000 costs for his successful claim and a further $15,000 costs for the plaintiff’s successful defence against the counterclaim of $100,000, representing 40% of the plaintiff’s costs on a substantial indemnity basis.
[16] Again, the argument advanced on the merits is that the costs award was excessive. This was a three day simplified rules case. There was no specific submission with respect to how the trial judge erred. However, the issue of proportionality is at least arguable with respect to the costs award and I am not satisfied that the over-all interests of justice would be served by denying the defendant/respondent an opportunity to argue for leave to appeal, particularly where the delay was relatively brief and in the absence of prejudice to the plaintiff/respondent.
[17] The notice of appeal is quashed. The time to serve the motion for leave to appeal the costs decision dated April 7, 2009 is extended to October 26, 2009.
[18] The plaintiff/respondent shall have costs of $2,700 all inclusive. These costs are both modest and appropriate even given my decision to extend time with respect to the costs decision.
Karakatsanis J.
Released: September 30, 2009