Keshavarz v. Zarieh, 2015 ONSC 6721
CITATION: Keshavarz v. Zarieh, 2015 ONSC 6721
DIVISIONAL COURT FILE NO.: 332/15
DATE: 20151102
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Amir Keshavarz, Plaintiff (Moving Party)
-and-
IRAJ ZARIEH; ZARSUN INC., Defendants (Respondents)
BEFORE: Swinton J.
COUNSEL: Amir Keshavarz, in person
Theresa J. Gosbee, for the Defendants (Respondents)
HEARD at Toronto: October 28, 2015
ENDORSEMENT
[1] Mr. Keshavarz has brought a motion to extend the time to appeal the judgment of Clemenhagen D.J. dated November 4, 2014 in which he ordered judgment for the defendants in the amount of $4,500 plus costs of $1,500.00.
[2] Following that decision, Mr. Keshavarz brought a motion under Small Claims Court Rule 17.04(1) seeking a new trial. That motion was dismissed by Prattas D.J. on May 27, 2015 with an order of costs to the defendants in the amount of $450.00.
[3] Mr. Keshavarz then served a Notice of Appeal dated June 25, 2015 which, on its face, seems to appeal the May decision, but in its details, clearly appeals the decision of November 4, 2014. It was well out of time to appeal the November 2014 decision when he serve his Notice of Appeal.
[4] The test on a motion to extend time to file a notice of appeal requires the consideration of five factors:
Did the moving party form an intention to appeal within the appeal period?
What was the length of the delay and the explanation for it?
Is there prejudice to the respondent?
Are the grounds of appeal sufficiently meritorious that the moving party should be able to proceed with the appeal?
Does the justice of the case require leave be granted?
See Rizzi v. Mavros (2007), 2007 ONCA 350, 85 O.R. (3d) 401 (C.A.) at para. 16.
[5] Mr. Keshavarz served his Notice of Motion around October 21, 2015, even though he was told his Notice of Appeal was defective in mid-July. His motion material was received by the Court on October 28, 2015. While he sets out grounds for the motion and arguments based on some transcript excerpts, he has not sworn or affirmed an affidavit or provided a draft Notice of Appeal.
Intention to appeal
[6] I am satisfied that the filing of the Small Claims Court motion to obtain a new trial and the ordering of transcripts shows an intention to challenge the decision within the appeal period and can be taken as an intention to appeal.
The Delay
[7] The delay since the judgment was granted is lengthy – almost a year at this time.
[8] Mr. Keshavarz explains that he chose the wrong process by bringing the Small Claims Court motion, and that explains the delay to May 2015. While I am sympathetic to the fact that he is now unrepresented, he was represented by a paralegal at the time of the trial and subsequent motion. Mr. Gosbee, then counsel for the respondents, has filed an affidavit in which he says he told the paralegal that the motion was brought incorrectly as early as February 10, 2015.
[9] I question the rationale for the Small Claims Court motion, as Rule 17.04(5) limits the grounds for granting a motion for a new trial to situations where there has been an error in arithmetical calculations of damages, or there is fresh evidence not available at the time of trial and that could not have been reasonably expected to be available. Not surprisingly, Prattas D.J. said that he did not have jurisdiction to reconsider the trial decision, which should properly be appealed to the Divisional Court. Thus, there was no merit to the motion, and one would have expected the paralegal to know that the proper route to review the trial decision was an appeal.
[10] In any event, there has been further delay since the May decision. Mr. Keshavarz filed a Notice of Appeal within 30 days of that decision, because he says he thought the appeal period ran from the May decision. However, it is clear from the Notice of Appeal that he appeals the November 2014 decision, not the more recent decision, and he was out of time.
[11] Moreover, he knew by mid-July that there was a problem with his Notice of Appeal because of a letter from Mr. Gosbee, respondents’ counsel. There is no indication that he moved quickly to deal with the problem. Mr. Gosbee indicates in his affidavit that he next heard from Mr. Keshavarz once in mid-September seeking dates for a motion. A Notice of Motion seeking an extension of time was not served until October 21, 2015.
[12] The delay is significant, and only partly explained by Mr. Keshavarz. Even that explanation is not adequate, given that he had paralegal representation and given the content of Rule 17.04. One would have expected him to appeal and bring a motion for an extension of time in a more timely manner.
Prejudice to the respondents
[13] The respondents have been required to proceed through an ill-chosen process in the Small Claims Court. They have not received the $450.00 costs of that motion. If the motion for leave to extend time is granted, they face further legal costs and delay.
Merits of the Appeal
[14] Mr. Keshavarz has not provided a draft Notice of Appeal with his motion materials and the Notice of Appeal from June 2015 is very sparse. He did make submissions about the arguments he would make that seem to be of two kinds – factual and procedural.
[15] The three day trial in this matter concerned a dispute about home renovations and breach of contract. Many of Mr. Keshavarz’s concerns are with respect to factual findings and credibility findings of the trial judge, and it appears that he seeks to relitigate the case. To succeed on disputes about facts, he would have the difficult task of showing a palpable and overriding error.
[16] He also expresses concern about the fairness of the process. His examples are the trial judge’s refusal to hear further submissions from Mr. Keshavarz’s paralegal following the decision and his instruction to the reporter to stop recording following the completion of the defendants’ evidence. These examples do not rise to an arguable case of procedural unfairness or bias.
The Justice of the Case
[17] As the Court of Appeal stated in Mavros at para. 25, there is a public interest in the finality of judgments. That is a consideration here, particularly in light of the length of the delay, the inadequacy of the explanation for delay and my determination about the strength of the appeal on the merits.
Conclusion
[18] Considering all the factors, I conclude that this is not an appropriate case to extend time to appeal the decision of Clemenhagen D.J. The motion is dismissed. As the Notice of Appeal was filed out of time, it is set aside and the appeal is quashed.
[19] Costs to the respondents are fixed at $3,000.00 all inclusive.
Swinton J.
Date: November 2, 2015