Zeitoun v. Economical Insurance Group, 2012 ONSC 2974
CITATION: Zeitoun v. Economical Insurance Group, 2012 ONSC 2974
DIVISIONAL COURT FILE NO.: 200/11
DATE: 20120518
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, SWINTON AND HERMAN JJ.
BETWEEN:
MARIO ZEITOUN, ABLA ZEITOUN and WILLIAM FARRAGE, Litigation Guardian for SAMMY ZEITOUN, SAMMER ZEITOUN and HANNAN ZEITOUN
Plaintiffs/Appellants
– and –
THE ECONOMICAL INSURANCE GROUP
Defendant/Respondent
G. Joseph Falconeri, for the Plaintiffs/ Appellants
Neil Searles, for the Defendant/Respondent
HEARD at Toronto: May 18, 2012
ASTON J. (orally)
[1] The plaintiffs are attempting to appeal the order of Master Abrams December 21, 2010. That order dismissed their action for failure to provide evidence of payment of the costs and security for costs required by her order of December 10, 2010. The Master’s endorsement of December 10, 2010 had made it crystal clear no extension of the deadline for proof of payment would be granted. It is also clear proof of payment was not provided before that deadline.
[2] The plaintiffs sought to appeal the order of December 21, 2010 on the basis that payment had in fact been made, but their Notice of Appeal was late. J. Wilson J., sitting as a single judge of the Divisional Court heard their motion to extend the time for service and filing of their Notice of Appeal on May 17, 2011.
[3] In affording the plaintiffs the indulgence of an extension of time for appeal, she ordered the plaintiffs to pay an additional $20,000 into court as security for costs within 60 days, failing which the motion would be dismissed and the Order dismissing the action would stand.
[4] The additional security for costs was never paid.
[5] The plaintiffs now bring this motion under s. 21(5) of the Courts of Justice Act to have a panel of this court review, and either vary or set aside, the order of J. Wilson J. made on May 17, last year. Their motion for such relief is dated October 7, 2011 and was originally returnable on October 20, 2011.
[6] Before this motion – the motion that is now before us – they had brought a motion dated July 15, 2011, returnable September 12, 2011, asking a single judge of this court to vary J. Wilson J.’s order of May 17, 2011 by granting an extension of time for the payment of the additional $20,000 she had ordered them to pay as a condition of the extension of time for their appeal of Master Abrams order of December 21, 2010.
[7] That motion is not before us, but it is noteworthy because it did not challenge the requirement that they pay an additional $20,000 as security for costs; it simply sought an extension of time for payment. The plaintiffs now wish to challenge the payment requirement, not just the time within which they were to make that payment.
[8] There is a threshold issue.
[9] Rule 61.16(6) of the Rules of Civil Procedure states in part:
61.16(6) A person who moves to set aside or vary the order of a judge … under subsection … 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 and states that the motion will be heard on a date to be fixed by the Registrar.
[10] Consequently, the plaintiffs now require a further indulgence – the extension of the time for their s. 21(5) motion, which should have been served by May 21, 2011 but was only served October 7, 2011.
[11] The test for an extension of time under Rule 61.16(6) is set out in Varshaska v. Varshaskiy, 2011 ONSC 1396 (Div. Ct.) at para. 6:
[6] This Court could now extend the time for her s. 21(5) motion but there is a well established test for such an indulgence. There are four considerations. First, an intention to appeal within the time for appeal. Second, a reasonable explanation for the delay having regard to the length of the delay. Third, whether there is prejudice to the respondent and Fourth, the apparent merit of the appeal, or in this case a reconsideration under s. 21(5) which is akin to an appeal.
[12] As pointed out by the Court of Appeal in Overseas Missionary Fellowship v. 578369 Ontario Ltd., 1990 CarswellOnt. 763 (O.C.A.), the purpose of s. 21(5) of the Courts of Justice Act is to provide an expeditious process for any challenge to the decision of a single judge of the Divisional Court. The short four day time limit in Rule 61.16(6) underscores the importance of challenging the decision immediately.
[13] In this case, the plaintiffs have adduced no evidence whatsoever to explain the delay.
[14] Furthermore, the relief sought and the grounds set out in their motion dated July 15, 2011 imply that they had no intention to overturn J. Wilson J.’s order requiring payment; they merely sought to extend the time for payment.
[15] Given the history of this litigation, both before and after Master Abram’s order of December 21, 2010, the repeated failure of the plaintiffs to meet deadlines, the absence of any evidence to justify non-compliance with Rule 61.16(6), the underlying purpose of that rule and the prejudice to the defendant continuing to incur costs that are problematically recoverable, we decline to extend the time required for service of the motion now before us. Without such an extension the plaintiffs cannot be heard on the motion under s. 21(5). The motion is therefore dismissed.
COSTS
[16] We have endorsed the Record, “For oral reasons given and recorded, the motion is dismissed with costs payable by the plaintiffs Mario and Abla Zeitoun fixed at $6,685.11.”
ASTON J.
SWINTON J.
HERMAN J.
Date of Reasons for Judgment: May 18, 2012
Date of Release: May 29, 2012
CITATION: Zeitoun v. Economical Insurance Group, 2012 ONSC 2974
DIVISIONAL COURT FILE NO.: 200/11
DATE: 20120518
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, SWINTON AND HERMAN JJ.
BETWEEN:
MARIO ZEITOUN, ABLA ZEITOUN and WILLIAM FARRAGE, Litigation Guardian for SAMMY ZEITOUN, SAMMER ZEITOUN and HANNAN ZEITOUN
Plaintiffs/Appellants
– and –
THE ECONOMICAL INSURANCE GROUP
Defendant/Respondent
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: May 18, 2012
Date of Release: May 29, 2012