Court File and Parties

CITATION: Ruby v. Wake, 2014 ONSC 6938

DIVISIONAL COURT FILE NO.: 500-14

SMALL CLAIMS COURT FILE NO.: SC-13-26867

DATE: 20141128

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: CLAYTON RUBY Appellant (Defendant)

• AND -

KIMBERLY WAKE Respondent (Plaintiff)

BEFORE: THEN J.

COUNSEL: Nader R. Hasan, for the Appellant (Defendant) Kimberly Wake, in person

HEARD: NOVEMBER 28, 2014

ENDORSEMENT

[1] The appellant seeks an extension of time to serve and file its notice of appeal from the decision of deputy judge Tait of the Small Claims Court made on August 13, 2014 awarding the respondent, Ms. Wake, $10,000 and costs of $175 with interest pursuant to the Courts of Justice Act from July 25, 2013.

[2] The $10,000 represents a portion of the $20,000 which the respondent advanced to Mr. Ruby as a retainer to represent her friend Mr. Edwards at his bail hearing.

[3] Mr. Ruby testified that he explained to the respondent that the $20,000 represented his retainer for representing Mr. Edwards for the completion of his bail hearing which he estimated to last two days.

[4] The respondent’s position is that she understood that in advancing the $20,000 Mr. Ruby would be personally present to represent Mr. Edwards on each of the two days of the bail application.

[5] Contrary to Mr. Ruby’s expectation the evidence and the submissions were completed in one day. Only the judge’s decision remained. The decision was delivered the following morning.

[6] Mr. Ruby testified that since his representation of Mr. Edwards had been completed it was not necessary for him to attend to receive the decision. Moreover, since the retainer of $20,000 was for representation to the completion of the bail application he was entitled to the full amount notwithstanding that the bail review was completed in one day and not in two days as anticipated.

[7] Ms. Wake’s position is that she understood that the $20,000 was to secure Mr. Ruby’s personal attendance for two days and that because he attended for only one day he was entitled to only $10,000.

[8] I note that Mr. Ruby also testified that he explained to Ms. Wike that once the $20,000 was deposited into Mr. Edwards’ trust account it would be Mr. Edwards who would determine how the money was to be used. Ms. Wake does not deny that this explanation was given to her.

[9] Mr. Ruby also testified that he explained to his client Mr. Edwards that once the evidence and submissions were completed at the bail application he would not be present to receive the decision of the judge. Mr. Ruby stated that his client did not require him to attend.

[10] The following four factors are to be considered in determining whether to grant an extension of time to appeal:

a. whether the appellant formed an intention to appeal within the relevant time period;

b. the length of delay and the explanation for the delay;

c. any prejudice to the respondent; and

d. the merits of the appeal.

(See Falus v. Martap Developments 87 Ltd., [2012] O.J. Not 4517 at para. 4 (C.A.); Bruno Appliance v. Cassels Brock & Blackwell LLP, 2011 ONCA 67, [2011] O.J. No. 263 at para. 5 (C.A.).

a) The intention to appeal

[11] I am satisfied that the appellant formed the intention to appeal within the relevant time period. The decision of the deputy judge was given on August 13, 2014. The transcript was ordered by the appellant on August 19, 2014. Appellant’s counsel notified the respondent of the appellant’s intention to appeal on August 25, 2014 by e-mail. There were two attempts at personal service before the September 12, 2014 deadline.

b) Length of Delay and Explanation for Delay

[12] The deadline for service was September 12, 2014. The appellant took steps to effect personal service upon the respondent at her home on September 10 without success. On September 11 the appellant contacted the respondent in an effort to effect personal service but again was unsuccessful in arranging with her a definite time when service would be made. Nevertheless on September 11 a process server attended at the respondent’s home and left a copy of the notice of appeal. As well, a copy of the notice of appeal was e-mailed to the respondent.

[13] While the appellant seeks to characterize the respondent’s conduct as evading service by not facilitating service on September 11, I am not prepared to make that finding on the record before me. However, on the basis of the appellant’s explanation I am satisfied that the appellant made reasonable and diligent efforts to effect service in a timely manner. Service was made by mail under Rule 16.06(2) effective September 16, 2014, four days after the deadline. In my view the length of the delay was minimal.

c) Absence of Prejudice

[14] I cannot discern any prejudice to the respondent by virtue of any delay in the service of the notice of appeal.

d) Merits of the Appeal

[15] I accept the approach this court should take in evaluating this prong of the test as outlined in Bruno Appliance and Furniture Inc. v. Cassels Brock & Blackwell LLP at para. 10:

…consider the merits of the appeal, not with a view to determining whether the appeal will succeed, but to determine whether it has so little merit that the court could reasonably deny the important right of an appeal: see Duca Community Credit Union Ltd. v. Giovannoli (2001), 2001 24017 (ON CA), 142 O.A.C. 146 (C.A.), per MacPherson J.A. at para. 11.

[16] The appellant submits that the deputy judge’s own findings of fact do not support the legal conclusion that there was a contract as there was no meeting of the minds with respect to any agreement. The appellant relies upon the following statement in the decision of the deputy judge:

I am in the unfortunate position of realizing two seemingly quite intelligent people looked at the same events, and because of different backgrounds, understood them in different ways.

[17] The appellant also relies on the following statement from G.H.L. Fridman, the Law of Contract 5th edition (Toronto, ON: Thomson Carswell, 2006 at 15) on the issue of meeting of minds:

It is not what an individual party believed or understood was the meaning of what the other party said or did that is the criterion of the agreement; it is whether a reasonable man in the situation of that party would have believed and understood that the other party was consenting to the identical terms.

(See also Kenwood Ltd. v. Renegade Capital Corp., [1997] O.J. No. 177 at para. 17 (C.A.)).

[18] On the issue of merit it is not necessary to determine whether the appeal will succeed. In my view, the grounds raised are sufficiently arguable and meritorious that the appellant should be given an opportunity to pursue them. I am satisfied that this prong of the test to extend the time for service of the notice of appeal has been met.

[19] For these reasons, the motion to extend the time for service and filing of the notice of appeal is granted.

[20] It is ordered that the appellant be permitted to file its notice of appeal within 10 days of the court’s order and be permitted to perfect its appeal within 30 days of the court’s order.

[21] If the parties cannot agree, the parties may make brief submissions (two pages exclusive of the bill of costs) as to costs within 30 days of the receipt of the decision of this court.

THEN J.

Date: November 28, 2014