Court File and Parties
CITATION: Petrykowski v. 553562 Ontario Limited, 2011 ONSC 6711
COURT FILE NO.: DC 11-290 ML
DATE: 2011-11-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MAREK PETRYKOWSKI
Defendant/Appellant
– and –
553562 ONTARIO LIMITED c.o.b. as BELL CARTAGE
Plaintiff/Respondent
Self-Represented
Mr. H. Bernard, for the Plaintiff/Respondent
HEARD: September 16, 2011
Reasons for Decision
MILANETTI J.
[1] This motion, heard on September 16, 2011, is the latest in a long line of procedural missteps taken by Marek Petrykowski (“Petrykowski”) in the course of his dispute with 553562 Ontario Limited c.o.b. as Bell Cartage (“Bell Cartage”).
[2] The dispute was the product of an employment relationship that went sour. It was first brought to the court’s attention by Bell Cartage in a Statement of Claim filed in the Superior Court in 2008. The claim was not actively pursued and was dismissed administratively.
[3] Petrykowski filed his own Statement of Claim in the Small Claims Court in the following year. He also revived the claim against him in the Superior Court. The following list provides a brief summary of the relevant history of these proceedings since:
a. March 15, 2010 [Small Claims Court – Deputy Judge Winny]: Petrykowski brought an omnibus motion for a variety of relief including an order for the disclosure of documents by Bell Cartage, leave to amend his claim, and a request for the adjournment of trial. With the exception of a number of amendments, the motion was dismissed by an Order dated March 16, 2010. The trial was adjourned, but this was due to another trial being entitled to priority.
b. June 7, 2010 [Superior Court – Whitten J.]: Petrykowski brought another series of motions, this time before the Superior Court. He was permitted to amend his Statement of Defence, but his requests to add a Counterclaim (set on the facts of his Small Claims Court matter), consolidate the proceeding with his Small Claims Court matter, stay his Small Claims Court matter, and to set aside any applicable limitation period under the doctrine of fraudulent concealment was dismissed.
c. June 15, 2010 [Small Claims Court – Deputy Judge Winny]: Petrykowski’s Small Claims Court matter went to trial. His claims were dismissed in their entirety by Deputy Judge Winny.
d. July 19, 2010 [Small Claims Court – Deputy Judge Winny]: Petrykowski brought a motion requesting a new Small Claims Court trial pursuant to rule 17.04(1) of the Small Claims Court Rules, O. Reg. 258/98. The motion was dismissed by Deputy Judge Winny, who found that the case did not fall within the narrow ambit of that rule.
e. July 27, 2010 [Superior Court – Parayeski J.]: Petrykowski brought a motion seeking to set aside or vary the Order of Whitten J. dated June 7, 2010, pursuant to Rule 59.06(2). The motion was dismissed.
f. July 29, 2010 [Divisional Court – Whitten J.]: Petrykowski brought an application for leave to extend the period of time to submit an appeal of the decision of Deputy Judge Winny. The Divisional Court dismissed the application.
g. December 15, 2010 [Court of Appeal – Rosenberg J.A.]: Petrykowski applied for an extension of time to seek leave to appeal the decision of the Divisional Court, refusing to extend time to appeal the decision of Deputy Judge Winny. The application was granted, and time to file the notice of motion for leave to appeal was extended to January 5, 2011.
h. February 16, 2011 [Divisional Court – Aston, Mackinnon, Koke JJ.]: Petrykowski sought a judicial review of the decision of Deputy Judge Winny dated June 15, 2010. Speaking for the Divisional Court, Koke J. concluded that Petrykowski’s appeal could not succeed.
i. June 1, 2011 [Divisional Court – Matlow, Heeney, Pomeranie JJ.]: Petrykowski brought a motion under rule 59.06(1) of the Rules of Civil Procedure, O.Reg. 436/10, taking issue with the Divisional Court’s endorsement. The motion was dismissed.
j. July 28, 2011 [Court of Appeal – Juriansz J.A.]: Petrykowski sought an extension of time to appeal the decision of the Divisional Court reviewing the decision of a motions judge of that court refusing an extension of time to appeal a decision of the Small Claims Court. The motion was dismissed due to an absence of evidence that the Divisional Court erred in its discretionary decision to dismiss the motion.
[4] The issue now before this court is whether Petrykowski may extend the time to appeal the Order of the Whitten J. dated June 7, 2010.
[5] Both Petrykowski and Bell Cartage rely on the Ontario Court of Appeal case of Rizzi v. Mavros (2007), 2007 ONCA 350, 85 O.R. (3d) 401, for the factors this court is to consider in exercising its discretion to extend the time for filing a notice of appeal. The factors are found in para. 16, which states:
[16] Although this motion involves a request for leave to file a cross-appeal, in my view, it is useful to consider the factors that apply when determining whether to exercise discretion and extend the time for filing a notice of appeal. Those factors are:
whether the (cross) appellant formed an intention to appeal within the relevant period;
the length of the delay and explanation for the delay;
any prejudice to the respondent;
the merits of the appeal; and
whether the “justice of the case” requires it.
[6] I will address each of these factors in turn.
Did Petrykowski form an intention to appeal within the relevant period?
[7] Petrykowski claims to have formed an intention to appeal the Order of Whitten J. on the day it was delivered. He provides transcripts of the proceeding as evidence of this fact. Page 68 of that transcript reads as follows:
THE COURT: okay , well I think at the end of the day, this matter is resolvable to everybody’s economic advantage. So what I’m going to do is I’m going to make costs payable in two months’ time.
MR. PETRYKOWSKI: Your Honour, I’m intending to appeal your decision. I would like four months, if it’s possible.
THE COURT: you’re going to appeal my decision? Well, okay...
MR. PETRYKOWSKI: Yes, Your Honour.
[8] Petrykowski also provides an email he wrote regarding a draft of the Order of Whitten J., in which he expresses disagreement at the content of the Order.
[9] I find that the evidence provided, when viewed in concert with Petrykowski’s litigious nature, establishes a clear intention to appeal the judgment of Whitten J. as of the date of the Order.
Does the length of the delay and explanation for the delay favour the granting of an extension?
[10] Approximately 11 months has passed since the Order of Whitten J. dated June 7, 2010. Petrykowski attributes the length of the delay to his decision to take a different legal route to achieve his desired objectives. Petrykowski has represented himself throughout these proceedings, and his day job and family obligations are said to have impacted his ability to proceed in a timelier manner. Bell Cartage’s busy schedule is also said to have contributed to the delay.
[11] Bell Cartage counters that Petrykowski’s “wait and see” approach to litigating this matter is contrary to the doctrine of res judicata.
[12] I do not think the doctrine of res judicata applies in the present instance. This court is not required to determine whether the subject matter of Whitten J.’s Order has been previously adjudicated, but whether there is sufficient explanation for the delay to grant an Order extending Petrykowski’s time to appeal that Order.
[13] While the length of delay is of some concern, I do not consider it excessive. Petrykowski’s explanation for the delay is reasonable, if not wholly satisfying. The court should not be required to provide accommodation for parties that choose not to appeal due to strategic concerns, but return to request an extension when their alternatives dry up. Petrykowski’s inexperience with the judicial process and busy schedule did not deter him from filing the numerous motions and appeals set out above. I can only conclude that he decided against doing so for other reasons. This factor militates against granting the extension.
Would granting an extension prejudice Bell Cartage?
[14] Bell Cartage claims granting an extension would prove prejudicial, due to the financial costs it has accrued over the course of these lengthy proceedings.
[15] In my view, there is no prejudice to Bell Cartage that could not be compensated through costs.
Is there merit in the appeal?
[16] The Order of Whitten J. dismissed Petrykowski’s request to:
a. add a Counterclaim to the Superior Court Claim;
b. consolidate the proceeding with Petrykowski’s Small Claims Court matter;
c. stay Petrykowski’s Small Claims Court matter; and
d. set aside any applicable limitation period under the doctrine of fraudulent concealment.
[17] Bell Cartage asserts that these matters were within the discretion of the court, and that their review should take place on a standard of reasonableness. Bell Cartage further notes that the Small Claims Court matter has already been decided, making its consolidation or stay impossible. Bell Cartage evokes the principle of res judicata, claiming Petrykowski should be estopped from launching a Counterclaim on the same issue that was finally decided between these parties in the Small Claims Court.
[18] I agree that the foregoing issues would greatly hinder any hope Petrykowski has for successfully appealing the Order of Whitten J.
[19] Petrykowski claims that Whitten J. made numerous errors in law, mixed fact and law, and fact, in addition to errors in exercising his discretion.
[20] I have reviewed these claims and consider them devoid of merit.
Does the “justice of the case” require an extension to be granted?
[21] The justice of the case is considered the governing principle in determining whether to grant leave to extend the time for an appeal (Laskin J.A. in Bratti v. Wabco Standard Trane Inc. (c.o.b. Trane Canada), 1994 1261 (ON CA), [1994] O.J. No. 855, 25 C.B.R. (3d) 1 (C.A.)).
[22] However, in circumstances where the court finds that an appeal is without merit, the court should not be required to assist in bringing it forward. In such cases, the justice of the case should compel a court to bring closure to the proceeding instead (Petrykowski v. 553562 Ontario Ltd. (c.o.b. as Bell Cartage, 2011 ONSC 1101).
[23] Even if I am wrong in finding that there is no merit to Petrykowski’s appeal, I find that the justice of the case militates in favour of denying an extension. There have been no fewer than ten Orders made in relation to the matters at issue between the parties to this dispute. This is the fourth occasion in which Petrykowski is seeking an extension of time (having done so previously at the Divisional Court on July 29, 2010, and at the Court of Appeal on December 15, 2010 and July 28, 2011).
[24] Petrykowski’s overly litigious conduct throughout this matter has been well documented.
[25] In his Order of July 29, 2010, Whitten J. noted “[t]here is no arguable case to appeal. To allow this to continue would be a travesty, simply perpetuating the vague assertions and procedural steps of the past.”
[26] On June 1, 2011, the Divisional Court described Petrykowski’s behaviour as bordering on vexatious.
[27] On July 27, 2010, Parayeski J. described Petrykowski’s motion pursuant to Rule 59.06(2) as an attempt to re-litigate the discretionary decisions of a motions judge.
[28] In the present case, the justice of the case militates in favour of dismissing this motion for an extension, and bringing closure to these proceedings.
Order
[29] After careful consideration of all the issues, I would dismiss Petrykowski’s motion to extend the time to appeal the Order of the Whitten J. dated June 7, 2010.
MILANETTI J.
Released: November 21, 2011
CITATION: Petrykowski v. 553562 Ontario Limited, 2011 ONSC 6711
COURT FILE NO.: DC 11-290 ML
DATE: 2011-11-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MAREK PETRYKOWSKI
Defendant/Appellant
– and –
553562 ONTARIO LIMITED c.o.b. as BELL CARTAGE
Plaintiff/Respondent
REASONS FOR JUDGMENT
MILANETTI J.
Released: November 21, 2011