Court File and Parties

CITATION: Sid-Ahmed v. Brashad, 2014 ONSC 6423

DIVISIONAL COURT FILE NO.: 335/14

DATE: 2014-11-04

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ABDULLAHI SID-AHMED, Plaintiff

AND: PETER BRASHAD and TORONTO TRANSIT COMMISSION, Defendants

BEFORE: C. Horkins J.

COUNSEL: Mohamed Doli, for the plaintiff Stephen Sargent, for the Defendant

HEARD at Toronto: October 30, 2014

Endorsement

[1] The plaintiff brings a motion for an order extending the time to appeal the final order of Master McAfee (“the Master”) dated May 13, 2014. The defendant contests this motion.

[2] The action arises out of a motor vehicle accident that occurred on April 26, 2007. This claim was issued on April 23, 2009.

[3] At some point this action was placed on the trial list and subsequently struck off. The action was not restored to the trial list within 180 days after being struck off. As a result, the Court issued a “Status Notice: Action Struck From Trial List”. This notice advised the parties that the action would be dismissed for delay unless the plaintiff successfully took one of the four steps set out in the Notice. The plaintiff took step one and brought a motion before the Master to restore the action to the trial list. The plaintiff was not successful on the motion.

[4] On May 13, 2014, the Master heard and decided the plaintiff’s motion for an order restoring the matter to the trial list. The affidavit that was filed on the motion is not before me. The Master denied the motion because the plaintiff did not satisfy the test in Nissar v. Toronto Transit Commission, 2013 ONCA 361 at para. 31:

Therefore, the applicable test is conjunctive: a plaintiff bears the burden of demonstrating that there is an acceptable explanation for the delay in the litigation and that, if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice.

[5] The Master explained in her reasons that the evidence before her did not address the test in Nissar.

[6] Rule 61.04 of the Rules of Civil Procedure, R.R.O. 1990, Regulation 194 (“the Rules”) states that the plaintiff must serve a Notice of Appeal within 30 days after the making of the order appealed from. The Master’s order was made on May 13, 2014 and so in this case the 30th day was Thursday, June 12, 2014. The plaintiff did not comply with the 30 day time limit and now brings this motion for an order extending the time.

[7] Rule 2.03 of the Rules provides that "The court may, only where and as necessary in the interests of justice, dispense with compliance with any rule at any time." Accordingly, a judge may extend any of the time requirements under the rules (see Wellwood v. Ontario (Provincial Police), 2010 ONCA 386 at para. 34).

[8] In deciding whether to extend time to appeal, the court considers a number of factors (see Rizzi v. Mavros, 2007 ONCA 350 at para. 16 and Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 at para. 15). In Enbridge Gas the court stated the test as follows:

15 The test on a motion to extend time is well-settled. The overarching principle is whether the "justice of the case" requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:

(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;

(b) the length of, and explanation for, the delay in filing;

(c) any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and

(d) the merits of the proposed appeal.

[9] The plaintiff filed the affidavit of Raymond Olafara in support of the motion to extend the time to appeal.

[10] Raymond Olafara is a private process server that plaintiff’s counsel (Mr. Doli) hired to serve and file the notice of appeal. This affidavit does not provide the necessary evidence to satisfy the test in Rizzi. The content of the affidavit is summarized as follows.

[11] Raymond Olafara states that he was instructed by Mr. Doli on June 16, 2014 to serve and file the notice of appeal. The affidavit goes on to explain the attempts to file the notice of appeal. The affidavit does not state when the notice of appeal was served. While I am prepared to accept that the delay in serving the notice of appeal was very short, Mr. Olafara’s affidavit offers no explanation for the delay.

[12] When Raymond Olafara tried to file the notice of appeal with the Court on Monday June 16, it was rejected because the appeal was out of time. The lawyer instructed Raymond Olafara to try and file it again on June 16, 2014. It seems that Mr. Doli failed to appreciate that the 30 day appeal period had expired. Once again, it was rejected and Raymond Olafara was told that the plaintiff needed to file a motion to extend the time for service.

[13] Raymond Olafara states that he was advised by the lawyer that “the Plaintiff has strong desire to pursue his action and will suffer extreme prejudice if extension of time to appeal is not granted as the Plaintiff suffers serious and permanent” injuries as a result of the motor vehicle accident.

[14] Raymond Olafara’s affidavit is not evidence that the plaintiff “formed a bona fide intention to appeal within the relevant time period”. The affidavit does not address the merits of the proposed appeal. As noted, there is no evidence to explain why the matter was struck from the trial list. Undoubtedly, there was delay or some form of non-compliance, but details are simply missing. A copy of the notice of appeal that Raymond Olafara tried to file is not attached to his affidavit. The proposed grounds of appeal are unknown.

[15] Lastly, Raymond Olafara’s affidavit does not address the issue of prejudice to the defendants caused, perpetuated or exacerbated by the delay.

[16] The plaintiff presented the court with a further affidavit at the start of this motion. This is an affidavit from Ismahan Ibrahim dated October 29, 2014. The defendants consented to the late filing of this affidavit.

[17] Ismahan Ibrahim is an articling student who works for Mr. Doli. She argued the motion before the Master. Most of the affidavit reviews what allegedly happened on the motion before the Master. The student states that the defendants “ambushed the plaintiff” and that the plaintiff was denied the opportunity to respond. The student states that the Master refused to give her the chance to respond and provide an “explanation outside the four corners of my affidavit”. For this reason, the student says that she was unable to argue that the defendants did not suffer.

[18] The Master’s endorsement reveals that she was concerned about the student arguing the motion. The Master asked the student twice if she wanted to adjourn the motion given that the defendants were objecting to the relief. The student spoke to the lawyer who had carriage of the file (presumably Mr. Doli) and he instructed her to proceed.

[19] The Master recorded that the plaintiff did not file a factum or case law. Further, the affidavit that was filed did not address the test in Nissar for restoring an action to the trial list.

[20] Only paras. 23 and 24 of the student’s affidavit deal with the motion to extend the time to appeal. Para. 23 points out that the delay was inadvertent and was a few days at most. Mr. Doli believed that the deadline to file the notice of appeal was June 14, 2014 and since this was a Saturday, he thought that he had until Monday, June 16 to file the notice of appeal. It appears that he calculated the time from the day he received the Master’s decision and not the day the decision was made. In para. 24, the student states that the plaintiff “had informed the intention to appeal as soon as he was advised” about the decision of the Master. The affidavit does not state when the plaintiff was “advised” about the decision.

[21] The two affidavits before me contain information that is largely irrelevant to the motion to extend the time to appeal. As noted the affidavit that was filed before the Master also failed to address the applicable test. The apparent failure of plaintiff’s counsel to appreciate what is required is concerning. That said, the plaintiff missed the time to appeal by a few days and has explained the inadvertence. In these circumstances I allow the motion to extend the time to appeal. I order the plaintiff to serve and file his notice of appeal no later than November 28, 2014. I make no order as to costs.

C. Horkins J.

Date: November 4, 2014