CITATION: Bagnulo v. Complex Services Inc., 2014 ONSC 3311
COURT FILE NO.: DC-13-497 ML
DATE: 2014-05-30
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Rosa Bagnulo
Margaret A. Hoy, for the Plaintiff
Moving Party (Plaintiff)
- and -
Complex Services Inc.
Frank Cesario, for the Defendant
Responding Party (Defendant)
The Honourable Madam Justice J.A. Milanetti
[1] This is a motion by the Moving Party, Ms. Bagnulo, seeking an extension of time to file and serve a Notice of Appeal in the Divisional Court. Ms. Bagnulo seeks to appeal two orders of Mr. Justice B.H. Matheson: the first dated September 20, 2011, wherein he dismissed Ms. Bagnulo’s action; and the second dated January 31, 2012, wherein he awarded costs to Complex Services Inc.
[2] Ms. Bagnulo commenced an action against her former employer, Complex Services Inc., on August 21, 2009, claiming damages of $50,000 for wrongful dismissal, career counselling, and punitive and exemplary damages.
[3] Justice Matheson heard Ms. Bagnulo’s action for wrongful dismissal at a three day trial in July 2011. The action was brought under the Simplified Procedure provided for in Rule 76 of the Rules of Civil Procedure, R.R.O 1990, Reg. 194.
[4] In a decision dated September 20, 2011, Justice Matheson dismissed Ms. Bagnulo’s action against Complex Services Inc. Justice Matheson found that Ms. Bagnulo had been employed pursuant to fixed term contracts after she lost the status of an unlimited term employee and she had not been constructively dismissed. Justice Matheson further found that Ms. Bagnulo had issued her Statement of Claim outside the two year limitation period. For these reasons, Ms. Bagnulo’s claim was dismissed.
[5] In his subsequent decision as to costs, dated January 31, 2012, Justice Matheson awarded costs to Complex Services Inc. in the amount of $38,000.00 inclusive of disbursements and H.S.T.
[6] Ms. Bagnulo filed a Notice of Appeal to the Ontario Court of Appeal on March 1, 2012. Despite being warned by counsel for Complex Services Inc. numerous times that the appeal lay to the Divisional Court, not the Court of Appeal, counsel for Ms. Bagnulo refused to abandon the appeal. As a result, Complex Services Inc. brought a motion to quash the appeal for lack of jurisdiction.
[7] On April 9, 2013, the Ontario Court of Appeal issued a written endorsement granting Complex Services Inc.’s motion to quash, noting that it lacked jurisdiction and that the proper forum to hear the appeal is the Divisional Court. The Court of Appeal declined to exercise its jurisdiction to transfer the appeal to the Divisional Court.
[8] Ms. Bagnulo then filed a Notice of Motion seeking leave to appeal the orders of Justice Matheson to the Divisional Court, dated August 1, 2013. After the Notice of Motion was amended twice with different return dates, the matter came before the court on November 21, 2013. Justice Kent found that the motion was incorrectly styled and was in fact a motion to extend the time for serving and filing a Notice of Appeal to the Divisional Court. The motion was adjourned to November 28, 2012. On that date, the motion was set to be heard as a long motion during the week of February 3, 2014.
[9] The motion was heard by me on February 6, 2014. For the reasons that follow, the motion is dismissed.
THE LAW:
[10] Pursuant to Rule 61.04(1) of the Rules of Civil Procedure, an appeal to an appellate court must be commenced by serving a notice of appeal within 30 days after the making of the ordered appealed from, unless a statute or the Rules provide otherwise. However, Rule 3.02(1) gives the court the discretion to order an extension or abridgement of any time prescribed by the Rules or on such terms as are just.
[11] It is agreed by the parties that there are four factors the court should consider when determining whether to extend time to file an appeal, including:
(a) whether the moving party had a bona fide and continuing intention to proceed with the appeal;
(b) the length of, and explanation for, the delay in filing the Notice of Appeal;
(c) any prejudice to the responding parties caused, perpetuated, or exacerbated by the delay; and
(d) the merits of the proposed appeal.
(See Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 15 and Rizzi v. Mavrosi, 2007 ONCA 350, at para. 16)
[12] In addition to these factors, the court must consider the overarching principle of whether the “justice of the case” requires that extension be given. (Bratti v. Wabco Standard Trane Inc. (1994), 1994 1261 (ON CA), 25 C.B.R. (3d) 1 (Ont. C.A.), at para. 4)
ANALYSIS:
(a) Intention to Appeal
[13] The first factor to consider is whether Ms. Bagnulo had a bona fide and continuing intention to proceed with the appeal. As noted above, Ms. Bagnulo filed her Notice of Appeal from the decisions of Justice Matheson on March 1, 2012.
[14] Ms. Bagnulo states that she had a bona fide intention to pursue this appeal, and that it was only as a result of an error on the part of her counsel that the appeal was launched in the Court of Appeal, rather than in the Divisional Court.
[15] Complex Services Inc. questions how Ms. Bagnulo could have a continuing intention to appeal when, at the time materials for this motion were filed, it had been more than 20 months since the expiry of the 30 day time limit to appeal and no valid Notice of Appeal had yet been served or filed.
[16] Complex Services Inc. points to the case of Roach v. Oneil, [2005] O.J. No 745 (Ont. S.C. (Div. Ct.)), where a delay resulted from the plaintiff filing a Notice of Appeal on time, but in the wrong court, despite the plaintiff being warned by defence counsel about the jurisdictional issue. Justice Malloy found that a delay of approximately six months between the court striking the plaintiff’s appeal and his correspondence regarding continuing the appeal in the proper forum was inconsistent with a bona fide and continuing intent to appeal.
[17] Complex Services Inc. also points to the case of Rainbow Concrete Industries v. Serbcan Inc., [2001] O.J. No. 764 (Ont. S.C.), wherein Justice Gauthier found that the assertion that the defendants had always intended to appeal was “woefully inadequate” evidence and inconsistent with the defendants’ failure to take any remedial steps to perfect their cross-appeal for four months. Justice Gauthier concluded that on the facts that the defendants could not be characterized as having maintained a firm intention to appeal.
[18] In the case at bar, Complex Services Inc. notes that its counsel, Ms. Khoraych, notified Ms. Bagnulo’s counsel, Ms. Hoy, that she had commenced the appeal in the wrong forum six times over seven months.
[19] Ms. Khoraych first wrote to Ms. Hoy on March 5, 2012, indicating that the appeal was launched in the wrong court and directed counsel to the relevant rules in this regard. Ms. Khoraych repeated her argument in a letter dated March 30, 2012, as Ms. Hoy had not addressed this in her reply on March 22, 2012. Ms. Khoraych wrote again requesting a response on April 25, 2012, on June 8, 2012, and on July 12, 2012, and included all previous correspondence on this issue.
[20] Despite all of these letters, together with invitations from Ms. Khoraych to discuss this issue, Ms. Bagnulo served and filed her Factum, Appeal Book and Compendium, and Certificate of Perfection at the Court of Appeal on October 9, 2012.
[21] On October 11, 2012, Ms. Khoraych once again pointed out the jurisdictional error first raised back in March. On October 12, 2012, Ms. Hoy asked Ms. Khoraych to consent to a transfer of the case from the Court of Appeal to the Divisional Court. Ms. Khoraych responded on October 15, 2012, and twice on October 22, 2012, seeking an explanation for the seven month delay since Ms. Hoy was first made aware of the jurisdictional issue. On October 22, 2012, Ms. Hoy replied indicating she would bring a motion to transfer the matter but provided no explanation for the delay.
[22] Receiving no further response from Ms. Hoy, Ms. Khoraych filed Complex Services Inc.’s material for its motion to quash. After Ms. Hoy twice requested an adjournment of the motion, it was rescheduled and heard on April 9, 2013. The Court of Appeal granted Complex Services Inc.’s motion to quash Ms. Bagnulo’s appeal for want of jurisdiction.
[23] As will be discussed in more detail below, there was a further four month delay from the Court of Appeal’s decision until Ms. Bagnulo served a Notice of Motion seeking leave to appeal to the Divisional Court on August 1, 2013.
[24] Ms. Bagnulo’s materials include a facsimile cover letter requesting to file a Notice of Appeal at the Divisional Court dated April 25, 2013. Apparently Ms. Hoy’s office was informed by the Divisional Court on May 15, 2013, that leave was required before the Notice of Appeal could be issued. A Notice of Motion for Leave was then filed on August 1, 2013.
[25] Ms. Khoraych states that she was not aware that Ms. Bagnulo had attempted to file a Notice of Appeal with Divisional Court until she was provided with Ms. Bagnulo’s materials the day before the November 21, 2013 motion was heard. Ms. Hoy did not mention her communications with the Divisional Court to Ms. Khoraych, despite their numerous communications over those four months. Ms. Khoraych also points out that the letter to the Divisional Court was not signed and did not include any proof of delivery.
[26] Given these delays and the lack of meaningful and prompt response by Ms. Bagnulo’s counsel, it is difficult to see how Ms. Bagnulo had a bona fide and continuing intention to appeal. Over seven months, despite being warned numerous times by Complex Services Inc.’s counsel that the appeal had been commenced in the wrong court, Ms. Hoy took no steps to address the jurisdictional error. Further, while Ms. Bagnulo may have attempted to file a Notice of Appeal with the Divisional Court in April 2013, any intention to appeal after the Court of Appeal’s decision does not appear to have been communicated to Complex Services Inc. until August 1, 2013.
[27] While Ms. Bagnulo’s first Notice of Appeal was filed and served within the time requirements, it was not for another 17 months that a Notice of Motion for Leave was filed in the proper court. Ms. Bagnulo’s statement that it was her full intention to bring the appeal in the proper court is not borne out on the facts.
[28] In these circumstances, I am unable to find that Ms. Bagnulo had a bona fide and continuing intention to appeal.
(b) Delay
[29] The court must consider both the length of, and any explanation for, the delay in filing the Notice of Appeal.
[30] In its Endorsement dated April 9, 2013, the Ontario Court of Appeal found that there was no reasonable explanation for the Ms. Bagnulo’s delay in appealing the decisions of Justice Matheson. Blair J.A. stated:
There is simply no reasonable explanation for the delay, particularly in view of the numerous letters sent by counsel for the respondent pointing out the jurisdictional problem and the lack of any meaningful response to those letters.
[31] It is noteworthy that the Court of Appeal declined to exercise its discretion to transfer the appeal to the Divisional Court.
[32] I accept the Court of Appeal’s finding that there was no reasonable explanation for the delay to that point. Unfortunately, the matter continued to be delayed after the Court of Appeal granted Complex Services Inc.’s motion to quash.
[33] Ms. Khoraych wrote to Ms. Hoy on April 11, 2013, seeking approval of a draft order reflecting the Court of Appeal’s Endorsement and requesting payment of the costs awarded by the court. Not having received any response, Ms. Khoraych’s office emailed Ms. Hoy’s office on April 17 and again on April 22, 2013. Ms. Khoraych sent a further letter on April 25, 2013, requesting a response by April 30, 2013. On April 25, 2013, Ms. Hoy responded and approved the draft order but failed to address the payment of costs. Ms. Khoraych sent another letter to Ms. Hoy on May 17, 2013, and received a cheque from Ms. Hoy’s office on July 29, 2013. Ms. Khoyach then wrote to Ms. Hoy on July 31, 2013, regarding the interest on the amount awarded, as well as the costs from the trial and related motion awarded by Justice Matheson.
[34] On August 1, 2013, Ms. Khoraych received by facsimile an amended Index and Notice of Motion, as well as the Appellant’s Motion Record for leave to Divisional Court (though this second letter was dated July 18, 2013). Ms. Hoy sent two further facsimiles attaching Amended Notices of Motion, the final one on September 19, 2013, with a return date of November 21, 2013.
[35] Ms. Khoraych wrote to Ms. Hoy on September 19, 2013, acknowledging the receipt of the Notice of Motion and requesting confirmation that the Appellant would not be attempting to deal with the merits of the appeal at the hearing of the motion for leave to appeal. Receiving no response, Ms. Khoraych wrote Ms. Hoy again on September 30 and on November 12, 2013. Ms. Khoraych wrote Ms. Hoy a further time on November 14, 2013, indicating that given Ms. Hoy’s lack of response, she understood that no attempt to argue the merits would be made, and advising that if it was it would be opposed.
[36] Ms. Hoy wrote to Ms. Khoryach on November 20, 2013, requesting an adjournment of the motion scheduled for November 21 because she had been on a trial which commenced on November 8. Ms. Khoraych responded outlining the reasons why Complex Services Inc. would not consent to the adjournment, and offered to dismiss the motion with costs. The same day, Ms. Hoy replied that she would not consent to the dismissal of the action and reiterated that she would be requesting an adjournment. Again on November 20, Ms. Khoraych wrote to Ms. Hoy repeating the reasons why Complex Services Inc. would not consent to an adjournment and noting that if Ms. Hoy proceeded, Complex Services Inc. would object to the adjournment and seek costs on a substantial indemnity basis.
[37] In addition to the length of the delay, the court must also consider any explanation for the delay. Ms. Bagnulo had no reasonable explanation for the first delay, as found by the Court of Appeal. The only explanation for this further delay in Ms. Bagnulo’s evidence was “the availability of Ms. Hoy’s schedule and court schedule.”
[38] Just as the Court of Appeal found that there was no reasonable explanation for the delay at that point in the proceedings, I find that Ms. Bagnulo has given no reasonable explanation for any subsequent delay.
[39] The decisions being appealed from were issued on September 20, 2011 and January 31, 2012. As of the hearing of this motion, no valid Notice of Appeal has yet been filed. I find that both the excessive length of the delay and the lack of any meaningful explanation for the delay are unreasonable in this case.
(c) Prejudice
[40] Neither party made extensive submissions on the issue of prejudice.
[41] Ms. Bagnulo submits that there is no prejudice to Complex Services Inc. as a result of any delay.
[42] Complex Services Inc. alleges that the delay has caused both pecuniary and non-pecuniary prejudice, as it has been more than two years since Ms. Bagnulo’s action was initially dismissed and Complex Services Inc. continues to spend time, money, and resources defending against her claim. Complex Services Inc. also notes that Justice Matheson found that Ms. Bagnulo’s claim was commenced outside of the statutory limitation period, and therefore Ms. Bagnulo’s delay has caused Complex Services Inc. the sort of prejudice that the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, was created to prevent.
[43] I note that this action was commenced under the Simplified Procedure provided for in Rule 76 of the Rules of Civil Procedure. Justice Malloy, in Roach v. Oneil, also took note that the action in that case was brought under the Simplified Procedure, “which is supposed to be a streamlined and expeditious means of resolving disputes” (para. 25). On the issue of prejudice resulting from delay, Justice Malloy concluded: “While the prejudice is not so significant that it would warrant, in and of itself, refusing the relief sought, neither is it inconsequential. It is a relevant factor to be taken into account” (ibid).
[44] Complex Services Inc. has been defending this action since it was commenced in 2009. Ms. Bagnulo has been attempting to appeal the decisions of Justice Matheson since March 2012. More than two years have since passed. The excessive delay caused by Ms. Bagnulo in appealing these decisions has increased the time and cost to Complex Services Inc. in defending this action. While this alone is not sufficient to dismiss the motion for an extension of time to file a Notice of Appeal, it is something to account for when considering whether to grant the requested extension.
(d) Merits
[45] According to Ms. Bagnulo’s Amended Notice of Motion, dated August 1, 2013, the grounds for this motion are:
The learned Judge erred in law by dismissing the action on the grounds that the Plaintiff was not constructively dismissed and that her employment ended as a result of her signing several fixed term contracts.
The learned Judge erred in law in failing to find that the Defendant was obligated to file a further and better complete Affidavit of Documents including an appropriate description of the privileged documents, pursuant to the Rules of Civil Procedure.
The learned Judge erred in law in dismissing the action on the ground that the Statement of Claim was not brought within the limitation period.
The learned Judge erred in the fact and law. The court erred on its evaluation of damages.
The learned Judge erred in law in determining the Plaintiff’s limitation date.
The learned Judge erred in law awarding costs.
Such further and other grounds as counsel may advise and this Honourable Court may permit.
[46] Ms. Bagnulo submits that at the time her final contract was terminated, she was working under a contract of indeterminate length and was therefore entitled to reasonable notice or damages in lieu of the same. Ms. Bagnulo further submits that the proper date of termination was in January 2009, and therefore Ms. Bagnulo’s action was commenced within the applicable limitation period. Regarding costs, Ms. Bagnulo submits that if the court finds that Ms. Bagnulo was wrongfully dismissed, Complex Services Inc. is not entitled to costs and the costs order should be set aside. In the alternative, if the court finds that the action was properly dismissed, Ms. Bagnulo submits that the trial judge failed to consider all of the relevant principles, including whether the costs award was disproportionate and exceeded the reasonable expectations of Ms. Bagnulo, and on that basis the costs order should be set aside.
[47] Complex Services Inc. submits that Ms. Bagnulo’s appeal has no merit, nor any chance of success. Complex Services Inc. submits that the court considered every fact and legal issue raised by Ms. Bagnulo and made findings of fact, including that Ms. Bagnulo’s employment ceased pursuant to a fixed term contract, and that any claims which arose more than two years prior to her action being commenced were correctly dismissed pursuant to the applicable limitation period. With regards to costs, Complex Services Inc. submits the cost award was neither disproportionate nor beyond reasonable expectations, given that Justice Matheson recognized that the amount of costs requested by both parties were similar and decreased Complex Services Inc.’s counsel’s fees to better reflect Ms. Bagnulo’s expectations. Furthermore, Justice Matheson considered the conduct of Ms. Bagnulo’s counsel in delaying the proceedings and the settlement offers made by Complex Services Inc. which were not accepted by Ms. Bagnulo.
[48] In determining whether or not the appeal has merit, I am not required to evaluate whether Ms. Bagnulo will or will not be successful on appeal. It does not matter whether I would allow or dismiss the appeal. Rather, it is enough that there is some chance of success on appeal. In this case, I see no basis on which Ms. Bagnulo could be successful in her appeal.
[49] While Ms. Bagnulo’s Notice of Motion contends that the trial judge erred “in law”, Justice Matheson’s findings in his decision dismissing the action were largely findings of fact.
[50] Justice Matheson found as a fact that Ms. Bagnulo signed several fixed term contracts after she lost the status of an unlimited term employee. Furthermore, Justice Matheson found as a fact that the limitation period began to run when the logo shops closed on February 1, 2007, as that is the date that Ms. Bagnulo’s employment status changed.
[51] In his decision to award costs to Complex Services Inc., Justice Matheson gave extensive reasons for the cost award. Justice Matheson considered the principles for costs outlined in Rule 57.01 of the Rules of Civil Procedure and made findings in relation to all of the relevant principles. Furthermore, Justice Matheson explicitly addressed the additional considerations of Complex Services Inc.’s offers to settle and the conduct of Ms. Bagnulo’s counsel in extending the length of the proceeding.
[52] Trial judges are accorded significant deference regarding findings of fact since, unlike appellate courts, they are present to see and hear all of the evidence. In my opinion, the grounds of appeal are largely fact based. Accordingly, I am not persuaded that there is any merit to the grounds of appeal sought to be raised by Ms. Bagnulo.
[53] In addition I note that, while the court must consider all of the relevant factors in determining whether to grant an extension of time to file a Notice of Appeal, the Court of Appeal in Enbridge Gas Distribution v. Froese found that “lack of merit alone can be a sufficient basis on which to deny an extension of time, particularly in cases such as this where the moving party seeks an extension to file a notice of leave to appeal, rather than an extension of time to file a notice of appeal…” (para. 16)
(e) Justice of the Case
[54] The overarching consideration in determining whether or not to grant an extension to file a Notice of Appeal is whether the “justice of the case” requires that an extension be given. In this case, I do not find that justice requires an extension.
[55] This is not a motion for an extension of time to file a Statement of Claim. The merits of Ms. Bagnulo’s action were heard and adjudicated. If Ms. Bagnulo was unhappy with the decisions of Justice Matheson, it was incumbent on her to file a Notice of Appeal in the proper court within the time limit proscribed. At the time of this hearing, Ms. Bagnulo had yet to do so. It was more than a year after Ms. Bagnulo first filed a Notice of Appeal at the Court of Appeal that she attempted to file a Notice of Appeal with the Divisional Court. Moreover, it has been more than two years since the first Notice of Appeal was filed, and no valid Notice of Appeal has been filed in the proper court.
[56] Additionally, I am very conscious of the fact that when the Court of Appeal addressed this matter in April 2013, it had the discretion to transfer the appeal to the Divisional Court but declined to do so. This resonates strongly with me.
[57] In all of the circumstances of this case, I find that the interests of justice to not warrant an extension of time to file a Notice of Appeal.
CONCLUSION:
[58] Considering all the relevant factors, I am not persuaded that Ms. Bagnulo should be granted an extension of time to file a Notice of Appeal in the Divisional Court.
[59] Ms. Bagnulo failed to act expeditiously after her counsel was informed, repeatedly, by Complex Services Inc.’s counsel of the jurisdictional error in March 2012. Ms. Bagnulo also failed to act expeditiously after she became aware that leave was required to appeal to the Divisional Court in April 2013. This does not indicate a bona fide and continuing intention to appeal.
[60] The Court of Appeal found that Ms. Bangulo had no reasonable explanation for the delay in April 2013, and I similarly find that no reasonable explanation has been given for the further delay until the matter was brought before the Divisional Court.
[61] While no strong prejudice was presented by either side, Complex Services Inc. has continued to spend time and money defending against this claim for an excessive and unjustified length of time.
[62] Finally, given that the proposed grounds of appeal are largely based on findings of fact, I find that the merits of Ms. Bagnulo’s appeal have no chance of success.
[63] As Justice Malloy noted in Roach v. Oneil, “[e]ven where any single factor might not, on its own, be sufficient to warrant such a disposition, the combination of factors makes it so” (para. 27). After considering all of the factors in this case, I find that an extension of time to file a Notice of Appeal is not warranted in this case.
[64] The motion is dismissed.
[65] If the parties are unable to resolve costs, they may provide a maximum of 3 pages written submissions to me within 30 days of the date of this decision.
Milanetti J.
Released: May 30, 2014
CITATION: Bagnulo v. Complex Services Inc., 2014 ONSC 3311
COURT FILE NO.: DC-13-497 ML
DATE: 2014-05-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Rosa Bagnulo
Moving Party (Plaintiff)
- and –
Complex Services Inc.
Responding Party (Defendant)
REASONS FOR JUDGMENT
Milanetti J.
JAM:lb/mw
Released: May 30, 2014