Javier v. Datol, 2011 ONSC 6615

Background

On July 16, 2010, Master Hawkins set aside the order of the Registrar dismissing this action for delay and ordered the defendants to pay costs to the plaintiffs in the sum of $14,000.00. The defendants appealed. On July 26, 2011, Chapnik J. dismissed the appeal and ordered costs to the plaintiffs in the sum of $20,000.00. The defendants now seek leave to appeal to the Divisional Court.

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Analysis

In essence, the moving parties argue that Chapnik J. erred in failing to find that Master Hawkins committed errors in the exercise of discretion in granting the motion to set aside the order dismissing the action. They say that she failed to recognize that the Master misapplied the test for setting aside a Registrar’s order dismissing an action in several ways; erred in failing to find that the responding parties did not adequately explain their delay; erred in finding that both sides shared the blame for the delay; erred in finding that this and a related action had been moving forward in tandem; erred in finding that the responding parties had intended to proceed with the action without delay; erred in failing to find that the responding parties had deliberately failed to set this action down for trial within time; erred in finding that the responding parties brought their motion to set aside the dismissal promptly; erred in finding that the responding parties had shown that the moving parties would not suffer significant prejudice from the setting aside of the order of dismissal and erred in making the cost order that he made. I am certain that I have not covered all of the alleged errors.

3Despite the length of the list of errors allegedly made by the Master that were advanced to the appeal judge and again to me today, upon reviewing the moving parties’ factum, and after listening to counsel for the moving parties’ best efforts to convince me that the Master misconceived, mischaracterized and misapplied the test for setting aside a Registrar’s order dismissing an action, it is impossible to escape the conclusion that the moving parties’ real complaint is that the appeal judge refused to conduct a rehearing of the motion on the merits.

4In my view, the appeal judge did precisely what she was required to do. She deferred to the findings of fact and mixed fact and law made by the Master, considered whether the Master made any palpable and overriding error requiring appellate intervention and concluded that he did not.

5I see no reason to doubt the correctness of the decision of the appeal judge. There may be one or two arguable issues of law concerning the components of the so-called Reid test for setting aside a Registrar’s order dismissing an action that arise out of the decision of the Master and that were inferentially adopted by the appeal judge, although I hasten to say that I come to no such conclusion. Nonetheless, I see no reason to doubt the decision of the appeal judge upholding the Master’s ultimate exercise of discretion in making an order that he considered to be just in the circumstances of the particular case.

6In any event, despite Mr. Lachmansingh’s valiant efforts to persuade me otherwise, in my view, there is no issue in this case that transcends the interest of the parties. Similarly there are no conflicting lines of authority justifying the granting of leave to appeal. The motion is dismissed.

COSTS

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Costs

Costs to the responding party, payable forthwith, fixed at $7,500.00.