CITATION: Atlas Holdings v. Vratsidas, 2011 ONSC 6098
DIVISIONAL COURT FILE NO.: 498/08
DATE: 20111013
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BROWN R.S.J., DAMBROT AND HOY JJ.
BETWEEN:
ATLAS HOLDINGS & INVESTMENTS INC. and ATLAS MAINTENANCE SYSTEMS (A) INC.
Plaintiffs
– and –
GEORGE VRATSIDAS, CANACLEAN BUILDING SERVICES INC., HI TECH CLEANING SERVICES CSI and KRISTOPHER PLEWA
Defendant
Glenn Cohen, for the Plaintiffs
Rod Byrnes, for the Defendant, Krzysztof Plewa, improperly named as Kristopher Plewa
HEARD at Toronto: October 13, 2011
BROWN R.S.J. (ORALLY)
[1] This is a motion to a panel of the Divisional Court under s.21(5) of the Courts of Justice Act to set aside the decision of Low J. of February 12, 2009, refusing leave to appeal from the decision of Master Egan of September 4, 2008.
[2] This motion is dismissed for two reasons. First, Rule 61.16(6) of the Rules of Civil Procedure requires that a person who moves to set aside an order of a judge under s.21(5) of the Courts of Justice Act shall do so by a notice of motion that is served within four days after the order is made. This motion was brought on more than two years after the decision of Low J. of February 12, 2009. There was no reasonable explanation on the record for this delay. Secondly, this Court will grant a motion to vary or set aside the decision of the Divisional Court motions judge refusing leave to appeal, only if the motions judge declines jurisdiction. For example, by applying the wrong test for leave to appeal or failing to give a party the right to be heard (see Millcraft Investment Corp. v. Ontario Regional Assessment Commissioner, Region No.3, [2000] O.J. No. 369 (Div. Ct.) at para. 28). This is a prerequisite for granting leave. In this case, the motions judge did not decline jurisdiction.
[3] For these reasons, the motion under s.21(5) of the Courts of Justice Act is dismissed.
COSTS
[4] We have considered the provisions of Rule 57.01 of the Rules of Civil Procedure. Costs of this motion are fixed at $5,000.00, inclusive of disbursements and HST on a partial indemnity basis, payable to the plaintiffs by the defendant, Kristopher Plewa or Krzysztof Plewa within thirty days of today’s date.
BROWN R.S.J.
DAMBROT J.
HOY J.
Date of Reasons for Judgment: October 13, 2011
Date of Release: November 9, 2011
CITATION: Atlas Holdings v. Vratsidas, 2011 ONSC 6098
DIVISIONAL COURT FILE NO.: 498/08
DATE: 20111013
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BROWN R.S.J., DAMBROT AND HOY JJ.
BETWEEN:
ATLAS HOLDINGS & INVESTMENTS INC. and ATLAS MAINTENANCE SYSTEMS (A) INC.
Plaintiffs
– and –
GEORGE VRATSIDAS, CANACLEAN BUILDING SERVICES INC., HI TECH CLEANING SERVICES CSI and KRISTOPHER PLEWA
Defendant
ORAL REASONS FOR JUDGMENT
BROWN R.S.J.
Date of Reasons for Judgment: October 13, 2011
Date of Release: November 9, 2011