Nagy Riad v. Marlien S. Aziz, 2011 ONSC 1060
ONTARIO SUPERIOR COURT OF JUSTICE – DIVISIONAL COURT
RE: Nagy Riad, Applicant
- AND -
Marlien S. Aziz, Respondent
BEFORE: The Honourable Mr. Justice P.D. Lauwers
COUNSEL: Nagy Riad, Self-Represented
David A. Weisman, for the Respondent
HEARD: February 15, 2011
ENDORSEMENT
LAUWERS j.
1Mr. Riad seeks an extension of time under Rule 3.02(1) of the Rules of Civil Procedure within which to seek leave to appeal from a decision of McGee J. dated February 12, 2010. Under 61.03(1)(b) the Notice of Motion for Leave must be served within 15 days of the making of the order from which leave to appeal is sought, and the Notice of Appeal with proof of service must be filed in the Notice of the Registrar within five days after service. Mr. Riad admits that he did not meet the time limits. It appears from the file that the appeal was dismissed by the Registrar’s order on October 7, 2010.
Setting aside the Registrar’s dismissal
2The relevant factors are set out in the decision of Weiler J.A. in Issasi v. Rosenzweig, [2011] O.J. No. 520 at paragraph 4:
4 Although this motion involves a request for leave to extend the time to perfect an appeal, it is useful to consider the factors that apply when determining whether to exercise discretion to extend the time for filing a notice of appeal: see Monteith v. Monteith, 2010 ONCA 78, [2010] O.J. No. 346, at para. 11. They are:
(1) whether the appellant formed an intention to appeal within the relevant period;
(2) the length of the delay and explanation for the delay;
(3) any prejudice to the respondent;
(4) the merits of the appeal; and
(5) whether the "justice of the case" requires it.
See Todd Archibald, Gordon Killeen & James C. Morton, Ontario Superior Court Practice, 2011 (Markham: LexisNexis Canada Inc., 2010), at p. 580; Rizzi v. Mavros (2007), 2007 ONCA 350, 85 O.R. (3d) 401 (C.A.), at para. 16; and Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35 (Ont. C.A.), at para. 14.
3I have no doubt that Mr. Riad intended from the very beginning to appeal the decision of McGee J. He says that he received mistaken advice that he had a month within which to file the Notice of Appeal, and he did so within that month. He also ordered the transcript of the case conference after which the order was made without realizing that case conference transcripts are not publicly available as a policy of the Ontario Superior Court of Justice. Although it is not clear from the court record, he may have pursued a motion for leave to appeal with the Divisional Court in Toronto and was told that to come back to Newmarket. Mr. Riad’s lack of conversancy with the Rules of Civil Procedure is of some relevance to the court in explaining delay and in exercising its discretion to extend: Monteith v. Monteith, 2010 ONCA 78, [2010] O.J. No. 346, MacPherson J.A. at paragraph 13.
4I do not find that there is any unusual prejudice to the respondent.
5I have more difficulty with the last two factors cited by Weiler J.A. in Issasi v. Rosenzweig, supra: the merits of the appeal, and whether the “justice of the case” requires that an extension be given. It seems to me that these factors are conceptually displaced where an extension of time to seek leave to appeal leads to an argument about the grounds for appeal under Rule 62.02(4). Those grounds engage similar reasoning and the argument is best left to the court hearing the leave application on a full set of materials.
6I note that Mr. Riad brought this motion despite paragraph 6 of McGee J.’s order that no further motion could be filed by him until he paid the costs awards of January 27, 2006, January 14, 2010 and February 12, 2010. Undoubtedly, he would argue that it would scarcely be fair to make him pay costs award for February 12, 2010 since that it the decision under appeal.
7Nonetheless, it is clear that the other outstanding costs orders should be paid. Mr. Riad cannot be permitted to ignore court orders. According to the respondent, these are as follows:
Ontario Superior Court of Justice (Newmarket) Action No.: FC-05-228444-00 January 27, 2006
$ 400.00
February 23, 2010
$ 500.00
Action No.: DC339/10 (Toronto) September 20, 2010 (Toronto action)
$ 300.00
Court of Appeal Action No.: M39252
$ 250.00
8In these circumstances, I grant Mr. Riad 30 days within which to file the motion materials necessary to seek leave to appeal the decision of McGee J. I dispense with the requirement that he show that he has ordered the transcript, since the transcript is not available pursuant to the policy of the Ontario Superior Court of Justice. Further, however, there are two conditions Mr. Riad must fulfill before he will be permitted to file his leave motion material; first, he must pay the costs awards set out above to Mr. Weisman’s office in trust and file with the court a receipt from Mr. Weisman’s office establishing such payment; and second, Mr. Riad must file with the court proof of service of the leave motion material on Mr. Weisman.
9The costs of this motion are reserved to the judge hearing the leave application.
10In the event that Mr. Riad fails to comply with these conditions within 30 days, then upon ex parte application by the respondent this motion will be dismissed with costs to the applicant in the amount of $500.00.
11The argument proceeded today despite the absence of assistive technology in the court room to permit Mr. Riad, who is hearing impaired, to hear. To accommodate him Mr. Riad stood beside me in the witness box, and Mr. Weisberg stood immediately by him when he made submissions. Judging from the cogency of his arguments and responses, I have no doubt that Mr. Riad was fully able to hear today’s proceedings and to participate.
P.D. Lauwers J.
RELEASED: February 15, 2011