Court File and Parties
CITATION: Horstein v. Orbach, 2014 ONSC 3444
DIVISIONAL COURT FILE NO.: 303/13, 304/13 and 305/13
DATE: 20140606
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: DANIEL HORSTEIN, Plaintiff (Respondent)
AND:
LILA ORBACH, Defendant (Appellant)
BEFORE: THEN J.
COUNSEL: Michael A. Katzman for the Plaintiff (Respondent) Stephen Dyment for the Defendant (Appellant)
HEARD: MAY 28, 2014
Endorsement
[1] The applicant brings this motion for an order setting aside the Registrar’s Order of January 15, 2014 dismissing the appeal from Small Claims Court action no. SC-10-106736 and Small Claims Court action no. SC-10-1110180 (hereafter Div. Ct. No. 303/13 and Div. Ct. no. 304/14) as well as the Registrar’s Order of February 11, 2013 dismissing the Appeal from Small Claims Court action no. SC-10-110161 (hereinafter Div. Ct. no. 305/13). If granted the applicant seeks an extension of time to file these appeals. The applicant also seeks security for costs of the cross appeal in Div. Ct. no. 303/13.
[2] The respondent Hornstein’s affidavit deposes that the appeal in Div. Ct. 303/13 and 304/13 was to be served and filed on December 21, 2013. An extension was granted by the respondent to January 3, 2014. On December 27, 2013 the Divisional Court issued a notice dismissing the appeal unless it be perfected before January 15, 2014.
[3] The affidavit of Victoria Walker who is the administrative assistant to the applicant’s counsel deposes that the late filing occurred because she was led to believe by the Divisional Court staff that filing could be done during the business day of January 15, 2014, whereas the dismissal occurred at midnight of January 15, 2014. With respect to Div. Ct. no. 305/13 applicant’s counsel was also granted a fifteen (15) day extension from December 21, 2013, to January 3, 2014. On January 15, 2014, the Divisional Court issued an Amended Notice Dismissing the Appeal unless it would be perfected before February 11, 2014. The applicant failed to perfect this appeal by February 11, 2014, because of pressures of other work.
[4] I accept the respondent’s submission that the relevant considerations with respect to setting aside the Registrar’s order dismissing an appeal for late perfection and extending the time for perfecting an appeal have been set out by Rouleau J.A. in Mignacca v. Merk Frost Canada Ltd. at 2009, CarswellOnt 2461 at para. 11 as follows:
whether the appellant formed an intention to appeal within the relevant period;
the length of the delay and explanation for the delay
any prejudice to the respondent; and
the merits of the appeal.
The court also considers whether the justice of the case requires the granting of an extension.
[5] With respect to the first factor the respondent accepts that the applicant formed an intention to appeal.
[6] With respect to the second factor, the respondent submits that notwithstanding the applicant’s counsel awareness of timelines and the concessions of respondent’s counsel to the extension of those timelines the applicant’s failure to observe the timelines and, in particular, that of February 11, 2014, betrays a pattern of delay to the prejudice of the respondent.
[7] With respect to the third factor, the respondent, who resides in Israel, asserts that he has suffered prejudice throughout this litigation which commenced in 2008 from delays on the part of the application which have been either calculated to secure a tactical advantage or caused by counsel for the respondent neglecting the matters which are the subject of this motion in favour of others. The latest round of missed filings is but one example of a pattern of conduct.
[8] While I have some sympathy for the respondent with regard to the issue of prejudice with respect to the second and third factors I would not give effect to those factors as a basis for refusing to set aside the Registrar’s order.
[9] I turn now to the fourth factor regarding the merits of the appeal. On this motion the applicant did not file the notice of appeal nor any of the decisions of Deputy Judge Mungovan. The respondent filed the decision of the Deputy Judge with respect to the action Div. Ct. no. 303-13 as that decision forms the basis of his cross-appeal.
[10] At the commencement of the motion I gave counsel for the applicant leave to file his notice of appeal over the objection of counsel. In argument counsel for the applicant referred only to grounds (vii) to (ix) as follows:
(vii) The learned Deputy Judge erred in his interpretation of the Limitations Act;
(viii) The learned Deputy Judge erred in making findings respecting the commencement and expiry of limitations periods for causes of action by subsequent encumbrances without a proper evidentiary basis to do so;
(ix) The learned Deputy Judge erred in finding that the respondent plaintiff’s cause of action arose after expiry of the limitations periods of the subsequent encumbrances of the property.
[11] Apart from merely reiterating these grounds of appeal in argument, counsel has not furnished the court with the decisions of Deputy Judge Mungovan with respect to Div. Ct. no. 304/13 or Div. Ct. no. 305/13 nor any authorities which may assist the court to determine whether the applicant has a real or reasonable chance of success on these grounds. In the supplementary affidavit of Victoria Walker, which was filed late, the following can be found:
Merits of the Main Appeal
- The main appeal results from, inter alia the fact that the trial judge in this matter appears to have made findings that the limitations period in connection with certain claims only arose following the expiry of another limitation period respecting non-parties to the action. The appeal raises novel issues not previously determined respecting the interpretation of the Limitations Act, and whether findings can be made relating to expiry of limitations periods for non-parties without any evidence.
[12] It is obvious that this constitutes merely the opinion of applicant’s counsel and is of no assistance in determining the merits of the appeal.
[13] The respondent did file the decision of the Deputy Judge in Div. Ct. no. 303/13. However, the applicant’s counsel did not advert to this decision in support of his grounds of appeal.
[14] In short, on this record there is nothing to indicate that the applicant has an arguable case.
[15] For these reasons the motion to set aside the Registrar’s orders dismissing the appeals must be dismissed. Accordingly, it is not necessary to consider whether an order granting the applicant security for costs of the cross appeal should issue.
[16] With respect to costs the respondent shall file its brief submissions of no more than 3 pages, exclusive of its bill of costs, within 15 days of the release of this decision. The applicant shall file its submissions of no more than 3 pages within 10 days thereafter.
THEN J.
RELEASED: JUNE 6, 2014