DIVISIONAL COURT FILE NO.: 60/10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, LINHARES DE SOUSA AND LEDERER JJ.
BETWEEN:
DR. MARVIN SAZANT
Moving Party
(Appellant)
– and –
CRIMINAL INJURIES COMPENSATION BOARD
Responding Party
(Respondent)
-and –
R.M.
Responding Party
(Respondent)
David B. Cousins, for the Moving Party (Appellant)
Megan Shortreed and Michael Fenrick, for the Board
Jack Fitch, for R. M.
HEARD at Toronto: March 31, 2011
ASTON J. (orally)
1The threshold issue before us is whether Dr. Sazant should be granted an extension of time to bring this motion under s.21(5) of the Courts of Justice Act. Rule 61.16(6) requires that such a motion be brought within four days of the order of the motions Judge. It goes on to specify that the Registrar will fix the date for the hearing of the motion.
2The test for whether to grant an extension of time for an appeal is well known. In deciding whether to grant an extension of time, the court must consider whether the applicant formed an intention to appeal within the relevant time period, the length of the delay and the explanation for the delay, any prejudice to the respondent and the merits of the appeal (see Mignacca v. Merck Frosst Canada Ltd. (2009), 2009 ONCA 393, 96 O.R. (3d) 164 (C.A.) at para. 11).
3The general rule that the appellant must have formed an intention to appeal within the relevant time period and must provide a reasonable explanation for any subsequent delay, is subject to the broader principle that an extension should be granted “if the justice of the case requires it” (see Frey v. MacDonald (1989), 33 C.P.C. (2d) at p. 13 (C.A.)).
4Under s. 21.5 of the Courts of Justice Act, there is perhaps a further consideration: the courts need to manage its own judicial resources. Resort to s.21(5) of the Courts of Justice Act should not become routine. The purpose of such a short time for a challenge to the decision of a single judge, merely four days, has a purpose. So too the requirement that the Registrar of the court be able to fix an early date for the hearing of the motion. That said, a consideration of the general factors already mentioned, on their own, lead us to the conclusion that an extension of time in this case is not warranted.
5The time for this motion to be brought was August 20, 2010. Dr. Sazant had counsel at the time who settled the order of Molloy J. No mention was made by his counsel of any intention to challenge the order of the motions Judge. There is no corroboration whatsoever of the bald assertion by Dr. Sazant that he intended to appeal within the time for appeal. All material from Dr. Sazant’s former lawyers went to his present counsel on September 30, 2010. Mr. Cousins says that he had no opportunity to review it during October and was only able to meet with Dr. Sazant on November 2, 2010. By that date, it would have been readily apparent that Dr. Sazant was already out of time. However, there was significant delay beyond that at a time when the need to move forward quickly or as soon as possible was clear.
6The motion was only served on the Board on November 22, 2010 and on R.M.’s counsel on November 23, 2010. The factum in support of the motion was not delivered within the time required. It was weeks late and beyond even the promised date by at least a few days. With respect to the question of prejudice, the Board tried to fix a date for the hearing some six months ago. It has been blocked in its ability to hold a hearing since Dr. Sazant’s motion for a stay was dismissed more than a year ago. His appeal stays the Tribunal process. The interests of the Board and R.M. are both prejudiced by this delay.
7The Board’s decision dismissing Dr. Sazant’s motion for a stay of the Tribunal proceedings, reserved to Dr. Sazant the ability to raise his concerns about delay and prejudice to him at the hearing and to that extent alleviate any prejudice to Dr. Sazant.
8More importantly though, as noted by Molloy J., he has remedies after the Tribunal hearing by way of appeal or judicial review.
9It is not necessary for us to delve too deeply into the apparent merit of Dr. Sazant’s appeal or his challenge to the decision quashing that appeal. The test, when considering an extension of time does not set the bar very high, but in this case the other considerations weigh heavily against an extension of time. The overriding consideration for us, that is to say the “justice of the case”, would require us to find that the merits of Dr. Sazant’s position are so strong that this final factor overwhelms or trumps the other factors.
10In our view, that is not the case here. The motion is therefore dismissed.
COSTS
11We endorse the Motion Record: “The motion is dismissed for oral reasons given with costs fixed at $7,917.05 in favour of the Board, payable by the moving party within thirty days.”
ASTON J.
LINHARES DE SOUSA J.
LEDERER J.
Date of Reasons for Judgment: March 31, 2011
Date of Release: April 4, 2011
CITATION: Sazant v. Criminal Injuries Compensation Board, 2011 ONSC 2060
DIVISIONAL COURT FILE NO.: 60/10
DATE: 20110331
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, LINHARES DE SOUSA AND
LEDERER JJ.
BETWEEN:
DR. MARVIN SAZANT
Moving Party
(Appellant)
– and –
CRIMINAL INJURIES COMPENSATION BOARD
Responding Party
(Respondent)
-and –
R.M.
Responding Party
(Respondent)
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: March 31, 2011
Date of Release: April 4, 2011