Court File and Parties
DIVISIONAL COURT FILE NO.: 89-13
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Oliver Yue, Plaintiff/Appellant
AND:
Jim Chouzouris and BMO Nesbitt Burns Inc., Defendants/Respondents
BEFORE: Harvison Young J.
COUNSEL: Oliver Yue, appearing in person, Plaintiff/Appellant
Andrew Parley, for the Defendants/Respondents
HEARD: June 4, 2014
ENDORSEMENT
[1]
Overview
The applicant/plaintiff, Mr. Yue, brings this motion to set aside the registrar’s dismissal for delay of his appeal to Divisional Court from a decision of Master Haberman. The Master’s decision dismissed Mr. Yue’s motion to set aside the dismissal of his action for delay.
2This matter has a long history of delay and dismissals for delay. The plaintiff commenced his claim in 2006. His action was dismissed for delay by the Registrar on January 31, 2012. Mr. Yue brought a motion before Master Haberman to set it aside, which she dismissed in reasons dated January 9, 2013 on the basis that he had not satisfied the criteria for having the dismissal for delay set aside. On February 15, 2013, he filed a notice of appeal from the Master’s decision. The parties received a dismissal notice from the Divisional Court registrar advising that the appeal would be dismissed for delay on March 16, 2014 if Mr. Yue failed to perfect by that day. He did not do so. That is the dismissal which he seeks to set aside in this motion.
[3]
Legal Principles
The principles to be applied on a motion to set aside a dismissal for delay pursuant to Rule 61 of the Rules of Civil Procedure are well established.
4In Paulsson v. University of Illinois, 2010 ONCA 21 (“Paulsson”) at para. 2 the Court of Appeal set out the following factors to be considered by the court on a motion to set aside a registrar’s dismissal for delay.
The factors a court should consider in deciding whether to grant this type of motion are well-known. They are: whether the applicant had an intention to appeal within the time for bringing an appeal; the length of the delay, and any explanation for the delay; any prejudice to the respondent caused by the delay; and the justice of the case. This last factor is most important and requires a consideration of the merits of the appeal.
[5]
Analysis
Mr. Yue made three principal submissions.
6First, Mr. Yue submitted that the delay perfecting this appeal has been mainly due to delay in production of transcripts. While it is true that the transcripts of the motion hearing before the Master have only recently been released, there would not have been a court reporter present to begin with but for the fact that Mr. Yue was unrepresented. Such transcripts were not necessary or indeed relevant to the appeal. There is nothing in the record that explains how that transcript could be relevant to this appeal: see Thunder Bay (City) Police Service v. Thunder Bay (City) Police Service, 2014 ONSC 1799 at para. 10-11. Accordingly, the delay in the production of transcripts cannot justify setting aside the dismissal for delay in the circumstances of this case.
7Second, Mr. Yue advises that he now realizes that he requires a lawyer and that he has “spoken” to some. He has, however, not retained a lawyer, nor has he offered any basis for the court to consider this any more realistic now than it has been for the past 8 years since he commenced this action. This is of particular concern in light of the pattern of delay in this case. In particular, he did not retain counsel after his action was dismissed by the Registrar for delay before the motion before Haberman J.
8Third, he submits that a 60 day extension of the time to perfect would cause no prejudice to the defendants while I agree that the incremented delay would not be prejudicial. The additional delay is as part of a cumulative pattern of delay which also relates to the last factor “the justice of the case”.
9Having considered these submissions, I am satisfied that the motion must be dismissed.
10The moving party bears the burden of proof on motions to set aside. In my view, Mr. Yue has not met this burden on any of the considerations, set out above in Paulsson, except that, as the defendant acknowledges, he did show an intention to appeal in a timely manner.
11I am also satisfied that here, the justice of the case, taking into account the delay which has pervaded this case from the outset, as well as the fact that it appears on its merits to be weak for the reasons set out by the Master, favours the defendants.
[12]
Disposition
The motion is dismissed.
[13]
Costs
If the defendant wishes to seek its costs, it is to file submissions with the Divisional Court within 14 days of today’s date. If Mr. Yue wishes to file any responding submissions to any made by the defendant (if made) then they must be filed within 14 days thereafter.
Harvison Young J.
Date: June 13, 2014