ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
James Wyman
Morris Holervich, for the Plaintiff
Plaintiff
- and -
Mark Nyman
Daniel Filipovic, for the Defendant
Defendant
HEARD: April 18, 2013, in Thunder Bay, Ontario
McCartney J.
Decision on Motion
1This is motion requesting leave for late service of a Notice of Appeal and Certificate Respecting Evidence. In brief, the Plaintiff alleges that work done by the defendant on his property cause flood damage to the property of his neighbour, the Plaintiff. The court found no fault on the part of Defendant.
2The pertinent facts respecting the request for leave are as follows:
The oral evidence at Trial concluded on August 27, 2012, and final written argument was submitted October 5, 2012.
On February 13, 2013 the Plaintiff’s lawyer received an undated, unsigned copy of a document, which appeared to be the Court’s decision, but bearing no indication it had come from the Court.
The Plaintiff’s lawyer immediately faxed a copy of the document to the Court, and requested to know if this was the Court’s decision. Copies of this material were also faxed to the Defendant’s counsel.
Receiving no reply from the above, on February 27 the Plaintiff’s counsel again wrote the Court asking about the said document.
On March 5, 2013, Plaintiff’s counsel received, by mail, a copy of the document in question signed by the Deputy Judge who made the decision “Deputy Judge K. Bucci” and dated “January 28, 2013.”
On March 13, 2013, Plaintiff’s counsel served Defendant’s counsel with a Notice of Appeal and Appellant’s Certificate Respecting Evidence. However, since Defendant’s counsel would not consent to the late service, this motion was brought.
Discussion
3The Plaintiff argues that the factors to be considered in this situation are as follows:
a) Was the intent to appeal formed within the relevant period.
b) The length of, and explanation for, the delay.
c) Prejudice to the Defendant.
d) Merits of the appeal.
e) Does the “justice of the case” require the relief claimed.
4Regarding a) above, the Plaintiff states he intended to appeal when he first became aware of the decision of the Court, and there is little to contradict this.
5Regarding b) above from the date eventually endorsed on the decision, the Plaintiffs were only 14 days late in giving his notice – the reason for which are set out in the factual situation. Clearly the mistakes made were for the most part the fault of the Court not the Plaintiff.
6Regarding c) above with the Notice of Appeal being only 14 days late and the Divisional Court sittings in Thunder Bay being on a regular basis, there is little or no prejudice to the Defendant.
7Regarding d) above in a factual situation where a great deal of evidence must be weighed by the Court, one can rarely say that there is no merit in an appeal – as demonstrated by the Plaintiff’s argument.
8Regarding e) above, clearly, because of where the fault lies here, the “justice” of the case would seem to require that the relief be granted.
9The defendant argues:
There is a lack of proportionality between the enormous costs of the trial and the amount being claimed.
The Plaintiff has not demonstrated his intention to appeal within the relevant time period.
The merits of the Appeal and justice of the case mitigate against granting the relief requested.
10Regarding 1) above the Defendant argues that his costs of $15,000.00 and his estimated costs of the Plaintiff at $20,000.00 – when considered against the claim of $8,000.00, is already out of proportion and does not justify further litigation. However, this is not the test to be met here.
11Regarding 2) above the Defendant argues the Plaintiff’s counsel may have had the intention to appeal but there is nothing indicating that the Plaintiff did within the required time period. However, I accept that the Plaintiff did intend to appeal as soon as he became aware of the decision.
12Regarding 3) above the Defendant argues that the trial judge carefully considered all of the evidence in coming to her decision and thus there is no merit to the appeal. As I have already mentioned in a situation such as this, one can rarely say there are no grounds of appeal.
Conclusion
13So, for all of the above reasons, the Motion is allowed, and leave is granted to extend the time to serve the Notice of Appeal and Certificate Respecting Evidence to March 13, 2013, the dates the documents were actually served.
14Regarding costs, the Plaintiff argues that the Motion was unnecessary since the Defendant should have consented to the requested extension of time. Defendant argues that if the Plaintiff would have been a little more diligent in determining when the Judgement was issued, the Motion would have been unnecessary. Both arguments have merit. No costs are awarded.
The Hon. Mr. Justice J. F. McCartney
Released: April 23, 2013
CITATION: Wyman v. Nyman, 2013 ONSC 2413
COURT FILE NO.: DC-13-002
DATE: 2013-04-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
James Wyman
Plaintiff
- and –
Mark Nyman
Defendant
DECISION ON MOTION
McCartney J.
Released: April 23, 2013
/mrm