CITATION: Theofylatos v. Plechac, 2012 ONSC 601
DIVISIONAL COURT FILE NO.: 285/11
DATE: 20120124
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
EFTHIMIA THEOFYLATOS
Plaintiff
(Respondent)
– and –
DANIEL PLECHAC and URBAN OASIS DAY SPA INC.
Defendant
(Appellant)
In Person
Robert W. Trifts, for the Defendants
HEARD at Toronto: January 24, 2012
JENNINGS J. (orally)
[1] The defendants seek to extend the time for appealing the order of the Small Claims Court Judge in this matter pronounced September 24, 2010. The defendants have filed neither a factum nor a book of authorities but in the hearing this morning, Mr. Trifts handed to me decisions in Riad v. Aziz and Onex Corp. v. American Home Assurance Co., two recent decisions by trial judges in this Court, which I am satisfied correctly set forth, albeit in differing circumstances than those before me the test to be met in obtaining an order extending time.
[2] In order to obtain an order extending time under Rule 3.02, the defendant must show:
(i) He had within the time fixed for appeal formed an intention to appeal;
(ii) He had a good explanation for the delay;
(iii) The proposed appeal has merit; and
(iv) There will be no prejudice to the plaintiff if leave is granted.
[3] The evidence of a fixed intention to appeal is at best, weak. The defendant says that although his agent told him when the judgment was received that he had thirty days to appeal and that he needed a lawyer to do so, it was not until six months later that he discovered during the course of a collection proceeding that he could appeal in person. In his affidavit sworn for today, he deposes that this information came from the mouth of the Deputy Court Judge. In his earlier Notice of Motion filed in June 2011, he states that the information came from a pro bono lawyer. There is no evidence before me from the plaintiff’s former agent. I cannot find a fixed intention to appeal existed prior to six months following the delivery of the judgment.
[4] The defendants waited for almost three months after the collection proceeding in March, 2011 to bring this motion. No credible explanation for that delay was before me.
[5] The Deputy Judge gave full and careful reasons for his findings, that he made after reviewing ample supporting evidence in some detail. The appeal does not appear to me to have any obvious merit.
[6] There is some evidence from the plaintiff in her affidavit that she has lost contact with some, if not all of her witnesses and now cannot locate them.
[7] At least three of the four requirements necessary to obtain the order are unsatisfied. Accordingly, I cannot say that the justice of this case requires an extension of time be granted. The appeal must be dismissed.
[8] No order as to costs.
JENNINGS J.
Date of Reasons for Judgment: January 24, 2012
Date of Release: January 27, 2012
CITATION: Theofylatos v. Plechac, 2012 ONSC 601
DIVISIONAL COURT FILE NO.: 285/11
DATE: 20120124
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS J.
BETWEEN:
EFTHIMIA THEOFYLATOS
Plaintiff
(Respondent)
– and –
DANIEL PLECHAC and URBAN OASIS DAY SPA INC.
Defendant
(Appellant)
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: January 24, 2012
Date of Release: January 27, 2012