Court File and Parties

CITATION: Tran v. Schwartz, 2014 ONSC 1593

COURT FILE NO.: DC 12/507

DATE: 20140317

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jenny Tran Plaintiff/Appellant

– and –

Arnold Schwartz Defendant/Respondent

Counsel:

Self-Represented

Chris Tucker, for the Defendant/Respondent

HEARD: March 11, 2014

REASONS FOR DECISION

WRIGHT J.:

[1] This is a motion for an order granting Jenny Tran (the “Appellant”), an extension of time to serve, file, and perfect an appeal.

[2] As a preliminary matter, it is important to note that the Appellant is no longer represented by counsel and requires the assistance of the Cantonese interpreter.

[3] In short, the circumstances leading up to the appeal are as follows. In 2012, the Appellant entered into a settlement agreement as a result of an action brought in small claims court. She now wants to resile from that agreement and have it set aside on the basis that she did not understand or appreciate what she was agreeing to and that she was “tricked” into signing the agreement.

[4] On March 18, 2013, counsel for the defendant contacted Mr. Adema, who was counsel for the Appellant at that time, inquiring as to the status of the appeal. After a brief conversation, counsel agreed to an extension of time to perfect the appeal to March 25, 2013.

[5] By May 1, 2013, the appeal had still not been perfected. Once again, counsel for the Defendant contacted Mr. Adema who indicated, among other things, that he would be in a position to perfect the appeal the following week.

[6] That was the last communication between counsel.

[7] On January 22, 2014, at the request of the defendant, the court issued a notice dismissing the appeal.

[8] On February 24, 2014, the Appellant contacted counsel for the defendant requesting their consent for time to extend the time to perfect the appeal.

[9] The delay in this case is substantial; at its worst it is 1 year and at its best it is 9 months, depending on the starting point. I am mindful that this far exceeds the timeframe that was at issue in Doobay v. Diamond[^1], where Karakatsanis J.A. found a 6 month delay in perfecting an appeal to be significant.

[10] In terms of reasons for the delay, I agree with the defendant there is little to no explanation, other than a fleeting reference by Mr. Adema to an emergency situation he had to deal with.

[11] The Appellant states after she became aware of the Notice Dismissing the Appeal on February 24, 2014, her counsel told her that he would no longer be able to represent her due to an emergency situation. The Appellant states that she has since been attempting to retain counsel but to date has been unsuccessful. Moreover, she states she has been dealing with not only personal health issues, but she is also the primary caretaker to her elderly mother who is suffering from kidney disease and requires dialysis. Finally, she also stated that she has a 10 day criminal trial matter that is set to start at the end of March 2014. From what I can gather she is still attempting to secure representation on that matter.

[12] I find the Appellants explanation, for at least her portion of the delay, to be reasonable and justified.

[13] The defendant takes the position that the grounds of appeal, as articulated by the Appellant, are not without merit but about as close as one could come to that position. I disagree. A self-represented person who enters into an agreement without the benefit of an interpreter, when one is needed is at least prima facie a serious consideration.

[14] I appreciate that there is a paucity of evidence in relation to Mr. Adema’s delay in perfecting the appeal. However, I am not prepared to hold the Appellant responsible for that. I find her situation, especially given the language barrier, to be a unique one. In an attempt to balance the interests of all of the parties, notwithstanding the lengthy period of delay, I am persuaded and prepared to grant the Appellant an extension of time to perfect the Appeal until June 1, 2014.

[15] I want to be clear that this is not an extension of time to retain counsel. The expectation is that if the Appellant is unsuccessful in retaining counsel, she will represent herself. There will be no further extensions.

Justice K.P. Wright

Released: March 17, 2014

[^1]: 2011 CarswellOnt 15715, 100 W.C.B. (2d) 148.