CITATION: Damallie v. Malik, 2014 ONSC 6561
DIVISIONAL COURT FILE NO.: 12/14
DATE: 20141112
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, NORDHEIMER AND POMERANCE JJ.
BETWEEN:
CLIFTON ANTHONY DAMALLIE
Plaintiff
(Appellant)
– and –
SHAUKAT MALIK
Defendant
(Respondent)
In Person
In Person
HEARD at Toronto: November 12, 2014
ORAL REASONS FOR JUDGMENT
POMERANCE J. (orally)
[1] The applicant, Clifton Damallie, seeks to vary the order of Sachs J., dated February 26, 2014 in which she denied his request to adjourn a motion to extend time for the filing of a Small Claims Court appeal. He relies upon s. 21 (5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides that "a panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion."
[2] On a motion brought under s.21(5), the standard of review is correctness on matters of law and palpable and overriding error on matters of fact or matters of mixed fact and law (see 3394603 Canada Inc. v. Ontario (Deputy Registrar of Motor Vehicles) 2008 CarswellOnt. 7769 (Div. Ct.)).
[3] By way of background, the applicant brought a small claims court action alleging negligence against Shaukat Malik, a paralegal who represented him in Provincial Offences Court. The Deputy Judge dismissed the claim on September 23, 2013, with written reasons following on October 15, 2013. The Deputy Judge concluded at page 3 of his reasons:
There is in my view no basis for the claim by the plaintiff that the defendant paralegal was negligent in representing the plaintiff. I can find no departure from the standard of care owed to the client by this paralegal.
[4] Five months later, on February 26, 2014, the applicant brought a motion seeking an adjournment of an application to extend time for the filing of an appeal. In dismissing the request, the Motion Judge stated:
The affidavit attached to the motion contains none of the facts necessary to support the relief requested. The plaintiff requests an adjournment on the basis that he is self-represented and has not had the time to prepare the necessary material. This explanation is not satisfactory, especially when there is no suggestion what it is the plaintiff needs to obtain and no explanation why he has not been able to obtain it in the several months that the motion has been pending.
[5] We see no error in the decision of the Motion Judge. We agree with her decision to refuse an adjournment of the motion, which was, by then, several months out of time. The applicant failed to provide any concrete justification for his request, nor has he persuaded us that there is any good reason for the delay. At its highest, his assertion is that he was not prepared.
[6] While Mr. Damillie is a self-represented litigant, he still has a duty to pursue his appeal with the proper degree of diligence. His failure to do so in this case has disentitled him to the relief sought, and has highlighted the need for finality in the litigation.
[7] The application is dismissed. Given that both the applicant and respondent are self- represented, we think it appropriate that there be no order as to costs.
POMERANCE J.
KITELEY J.
NORDHEIMER J.
Date of Reasons for Judgment: November 12, 2014
Date of Release: November 14, 2014
CITATION: Damallie v. Malik, 2014 ONSC 6561
DIVISIONAL COURT FILE NO.: 12/14
DATE: 20141112
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, NORDHEIMER AND POMERANCE JJ.
BETWEEN:
CLIFTON ANTHONY DAMALLIE
Plaintiff
(Appellant)
– and –
SHAUKAT MALIK
Defendant
(Respondent)
ORAL REASONS FOR JUDGMENT
POMERANCE J.
Date of Reasons for Judgment: November 12, 2014
Date of Release: November 14, 2014