Mitchell v. The Corporation of the City of Mississauga, 2015 ONSC 2926

CITATION: Mitchell v. The Corporation of the City of Mississauga, 2015 ONSC 2926

DIVISIONAL COURT FILE NO.: 74/14

Court File No.: 10-416378-0000

DATE: 2015-05-05

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: REVEREND RICHARD STEVE MITCHELL, Moving Party (Appellant)

– and –

THE CORPORATION OF THE CITY OF MISSISSAUGA, Respondent Party (Defendant)

BEFORE: THEN J.

COUNSEL: Reverend Richard Steve Mitchell, in person Marcia Taggart, for the Respondent Party (Defendant)

HEARD at Toronto: April 27, 2015

AMENDED ENDORSEMENT

[1] The applicant brings this motion to set aside the order of the Registrar dismissing his appeal on the basis that it was not perfected in a timely manner and to extend the time within which to perfect his appeal.

[2] On January 17, 2014, the applicant moved before Master Haberman pursuant to Rule 37.14(1)(b) to set aside the order of Master Muir, dated July 11, 2013, whereby the Master dismissed an action for wrongful prosecution for delay at a Status Hearing convened for that day as the applicant failed to attend.

[3] Master Haberman dismissed the motion thereby allowing the dismissal order of Master Muir to stand.

[4] In her reasons Master Haberman thoroughly and accurately canvassed the background of events which gave rise to the dismissal of the action for wrongful prosecution and these events need not be detailed here. It will suffice to say that she emphasized the fact that in seeking to overturn his conviction for speeding and license suspension the actions of the applicant are replete with failure to attend or to observe the rules of court in pursuing various avenues of appeal.

[5] With respect to the dismissal before Master Muir, Master Haberman stated the following in her reasons:

Against that background, Mitchell started this action for wrongful prosecution. As the action was not set down for trial within the prescribed time, a Status Notice was issued by the court on December 24, 2012. As this is a matter that falls under the Simplified Rules, an action is set down for trial by delivery of a Notice of Readiness for pre-trial. This is a simple form, contained within the Forms attached to the Rules of Practice. All Mitchell had to do was complete the form, serve it on the defendants and then file it with the court.

Instead it appears that he requested a Status Hearing and one was scheduled for June 19, 2013 before Master Muir. Prior to that date, Mitchell wrote to the court seeking an adjournment. The matter was therefore put over to Master Muir’s Status Hearing court of July 11, 2013. Though aware of the date, Mitchell neglected to attend or to seek a further adjournment. As a result, Master Muir dismissed the action, as Mitchell had failed to show cause why the action should not be dismissed. This was a reasonable and appropriate action for the master to have taken in the circumstances.

[6] Master Haberman held that in order to succeed before her, the applicant had to meet the test in Rule 37.14(1)(b) by explaining why he failed to appeal through accident, mistake or insufficient notice and as well to show cause why his action should not have been dismissed by Master Muir. In his oral submissions he stated that he did not attend because he was overburdened with school work and other things and it slipped his mind.

[7] Master Haberman held that while the applicant was self-represented he was familiar with the Rules and given his extensive history of non-attendance and late filings and given the entitlement of the defendants to finality with respect to a matter that has been before the courts in various forms since 2006, the applicant had not shown cause why the order of Master Muir should not stand and accordingly dismissed the motion.

[8] The applicant appeals to this court from the order of Master Haberman. That appeal was to be perfected on March 9, 2015. The applicant tendered his materials on that date but because of deficiencies in his factum and the omission of documents his materials were not accepted leading to the Registrar’s dismissal for failing to perfect his appeal.

[9] I adopt the factors outline by Weiler J.A. in Paulson v. Cooper, 2010 ONCA 21, [2010] O.J. No. 123 (C.A.) at paragraph 2:

2 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.

[10] It appears clear that there was clear intention to appeal as the applicant attempted to perfect the appeal on the last day available to do so. While self-represented should be given same leeway with respect to errors made in the preparation of a factum and the preparation of relevant documents, these deficiencies could have been rectified had the applicant not attempted to perfect his appeal at the last moment after receiving timely notice that his materials were due. Nevertheless, I do not consider this factor to be determinative.

[11] The respondent does not argue that it has been prejudiced by the delay.

[12] I turn now to the justice of the case including the merits of the appeal. As I understand his argument, at the heart of the applicant’s concern in bringing this action is that his license to drive was suspended on October 27, 2008 as a result of a speeding ticket issued in 2006. It is central to his position that Justice M. F. Khoorshed of the Ontario Court of Appeal had dismissed the speeding infraction on May 30, 2008, in Brampton and that accordingly his license to drive should have been reinstated. It is his position that he is entitled to damages because the continuing suspension of his license has caused him inconvenience and has resulted in prejudicing his ability to pursue employment opportunities in particular with the R.C.M.P.

[13] The respondent submits that based on the notice of motion with respect to the proceeding before Justice Khoorshed as well as the transcript of that proceeding, Justice Khoorshed did not dismiss the speeding infraction but rather dismissed the applicant’s motion to extend time to file an appeal and to waive payment of the fine pending appeal. I agree with this submission as did Master Haberman in her reasons. It would appear that the action for wrongful prosecution has little realistic prospect of success.

[14] In my view Master Haberman did not err in principle in her treatment of Rule 37.14(1)(b) and further I am of the view that the appeal does not have a real chance of success.

[15] Accordingly, the motion to set aside the registrar’s order and to extend the time within which to perfect the appeal is dismissed.

[16] The respondent submits costs of $2,187.23 on a substantial indemnity basis. The applicant submits that no costs are appropriate. On this motion the respondent filed only the reasons of Master Haberman and tendered a small book of authorities at the hearing. While the respondent’s disbursements in the amount of $237.98 are reasonable, the amount of $1,200 for preparation and appearance appears excessive in the circumstances. This is not a case for substantial indemnity given the applicant is self-represented and the matters at issue. In my view a costs award of $500 inclusive of disbursements and HST is fair and just in the circumstances.

THEN J.

Date: May 5, 2015

CORRECTION NOTICE

Corrected decision: the Divisional Court file number of the original endorsement was corrected on July 28, 2015, and the description of the correction is appended:

Divisional Court File number “14/74” was replaced by number “74/14” on the first page of endorsement