Court File and Parties
CITATION: Aliyar v. Zeinali, 2015 ONSC 7141
DIVISIONAL COURT FILE NO.: 2305/15, 2309/15
DATE: 20151202
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Siamak Aliyar
Appellant
– and –
Amir Houshang Zeinali
Respondent
Self-Represented
Doug Ferguson for Community Legal Services, for the Respondent
HEARD: November 10, 2015
Reasons for Decision
LEITCH J.
[1] The appellant seeks an order to extend the time to appeal two judgments of the Small Claims Court issued September 17, 2015.
[2] The appellant has filed an affidavit in support of this motion indicating that he has been receiving treatments for cancer since June 2014; had major surgery December 14, 2014 followed by several months of chemotherapy and radiation therapy; and, has suffered from ill health since that time. He deposed in para. 7 that since September 17, 2015 he has had over ten medical appointments and diagnostic procedures and has received a further critical diagnosis.
[3] The appellant’s position is that because of his medical issues, his health and his commute to London, he has been unable to file his appeal within the required time period and he seeks this extension.
The Small Claims Court Proceedings
[4] In action 822/13, commenced on May 21, 2013 the respondent issued a claim against the appellant for an unpaid debt, which was represented by a promissory note.
[5] In action 846/14, the appellant commenced an action against the respondent, which is described in the respondent’s motion record as an action for defamation.
[6] These actions did not proceed to trial until September 17, 2015.
[7] The details of their procedural history are as follows:
i. On August 19, 2012 the respondent brought a motion requiring the appellant to produce particulars of his defence to the debt claim. This motion was granted.
ii. A settlement conference was held in relation to the debt claim on November 1, 2013. The appellant was represented by a paralegal at the conference
iii. The deputy judge presiding at the settlement conference ordered that both parties produce to the other, copies of all relevant documents by December 31, 2013 and ordered the appellant to advise the respondent of his current address within 30 days.
iv. The appellant did not comply with these orders, despite follow up by a case worker at Community Legal Services on the respondent’s behalf.
v. On February 24, 2014 the respondent brought a motion to have the appellant’s defence to his debt claim struck due to non-compliance with the orders. This motion was dismissed. The endorsement noted that the respondent had an address for service of the appellant (that being the address of the paralegal who was representing him) and there was no reason that the respondent required the appellant’s address as long as the appellant remained represented.
vi. A trial date of June 5, 2014 was set for Action 822/13. The trial was adjourned at the request of the appellant to September 18, 2014.
vii. A settlement conference in relation to Action 846/14 was held on August 13, 2014 at which time the parties were ordered to serve will say statements on or before September 30, 2014. The appellant was also required to delineate in his statement particulars of the alleged defamation and details of his alleged loss.
viii. Community Legal Services followed up on behalf of the respondent on September 8, 2014. The appellant requested an extension until October 10, 2014 to comply with the August 13, 2014 order, which Community Legal Services agreed to. However, the appellant did not file the documentation as ordered within the extended timeline.
ix. On September 18, 2014 when the trial of the debt action was to commence, the appellant represented by a paralegal, sought another adjournment. The paralegal acting for the appellant produced evidence that the appellant was undergoing chemotherapy and radiation treatment. An adjournment of the trial was granted to November 6, 2014 peremptory on the appellant.
x. At the rescheduled trial date of November 6, 2014 the paralegal representing the appellant attended and indicated that the appellant was unwell and could not attend. On this occasion, there was no evidence presented to justify the adjournment. A further adjournment was granted to December 16, 2014 with the presiding deputy judge noting that the paralegal representing the appellant had been advised that the trial may proceed without his client, depending on submissions made on the return date and his client should be aware of this.
xi. In advance of the fourth trial date, the paralegal representing the appellant wrote to Community Legal Services indicating that he found himself “in the unenviable position of seeking an adjournment” having been contacted by his client and informed that he had a surgical consultation on December 16 and was scheduled for surgery December 22. The appointment and the surgery were confirmed by correspondence from the appellant’s treating physician.
xii. On December 16, 2014 the trial was adjourned again to March 31, 2015. The appellant was ordered to confirm in writing on or before March 17, 2015 that he was able to attend for trial on that date and the presiding deputy judge directed that any motion to adjourn must be “fully supported by doctor’s letters”.
xiii. Notwithstanding this direction, there was no confirmation from the appellant as required prior to March 17, 2015.
xiv. The defamation action was also set for trial March 31, 2015. On March 25, 2015, Community Legal Services requested the appellant’s will say statements as ordered August 13, 2014. These statements were not produced.
xv. On March 31, 2015 the paralegal representing the appellant requested an adjournment of both the debt action and the defamation action based on the appellant’s ill health. However, notwithstanding prior directions, there was no documentation from a doctor.
xvi. The presiding deputy judge noted that the December 16, 2014 endorsement was clear that any request for a further adjournment was to be supported by doctors’ letters, prior orders made in relation to both actions had not been complied with and this was the fourth trial date that had been set peremptory on the appellant. Nevertheless, a fifth adjournment of the trial was granted, to a date not before June 1, 2015, peremptory again on the appellant. It was further noted that if the appellant did not appear on that date, the matter would proceed without him.
xvii. The respondents were awarded costs on March 31, 2015, which were to be paid by April 30. A cheque was delivered to the respondent after that date and returned for non-sufficient funds. The cost order was ultimately satisfied in June 2015.
xviii. Both matters were set for trial September 17, 2015. The appellant was represented by a paralegal. He requested a further adjournment. No medical evidence was provided. For oral reasons the deputy judge struck the appellant’s defence to the debt action pursuant to Small Claims Court rule 17.01(2)(b) and the trial proceeded by way of an assessment of damages. The respondent was granted judgment.
xix. The respondent moved to dismiss the appellant’s claim in the defamation action. The deputy judge granted the motion and dismissed the appellant’s defamation action with oral reasons, which according to the affidavit filed by the respondent, included the fact that the appellant had not complied with the August 13, 2014 production order.
The Applicable Test
[8] In Enbridge Gas Distribution Inc. v. Froesce, 2013 ONCA 131, 114 O.R. (3d) 636 at para. 15, Gillese J.A. outlined what she described as a “well settled” test on a motion to extend time, noting that “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.
*See Rizzi v. Mavros , 2007 ONCA 350, 85 O.R. (3d) 401
Discussion
[9] In considering the factors set out above, the respondent places particular emphasis on the question of whether the appellant formed a bona fide intention to appeal within the relevant time period and the issue of the merits of the proposed appeal.
[10] The appellant filed an affidavit in support of this motion in which he deposed that he attended the London court house October 16 and 19, 2015 but because of “administrative problems”, which he has not explained he was unable to file his Notice of Appeal. As the respondent notes, the appellant’s affidavit is dated October 23, after the date of expiry of the time period within which to appeal and his second attendance at the courthouse was also after the appeal period expired. The delay in filing is not lengthy and although the appellant did not elaborate on what administrative problems occurred, he submitted that his health issues explained the delay.
[11] It is not clear that the appellant had a bona fide intention to appeal within the required time provided.
[12] The respondent did not advance an argument that he had been prejudiced by the delay and primarily focused on the merits of the appeal.
[13] I should note that Mr. Ferguson was fully sympathetic of the appellant’s health issues, and stated that he had recently faced the challenge of cancer. However, Mr. Ferguson asserted that the appellant was extended many courtesies. He was given many opportunities to attend for trial and to comply with court orders and the respondent was entitled to have the matters proceed September 17, 2015 particularly when the appellant was represented at that time, as he had been throughout.
[14] With respect to the issue of the merits of the proposed appeal, as Gillese J.A. observed at para. 20 in Enbridge:
Before granting leave, this court must be satisfied that the proposed appeal presents an arguable question of law, or mixed law and fact, requiring consideration of matters such as the interpretation of legislation; the interpretation, clarification or propounding of some general rule or principle of law; the interpretation of a municipal by-law where the point in issue is a question of public importance; or the interpretation of an agreement where the point in issue involves a question of public importance: see Sault Dock Co. at para. 8.
[15] On this motion, the affidavit in support of the motion for an extension is completely devoid of any information addressing the merits of the appeals. The inference from the appellant’s submission is that he is seeking a new trial because he was not in attendance on September 17. However, as noted in the affidavits sworn in response to this motion and emphasized during submissions made on behalf of the respondent, the appellant has been represented by a paralegal at each stage of the proceedings and is a paralegal himself.
[16] With respect to the debt action, the September trial date was the sixth trial date. Therefore, the appellant had six opportunities to participate in a trial and many trial dates had been noted as peremptory dates. Despite orders to provide medical evidence to justify adjournments, only one doctor’s note was provided during the course of many adjournments. The appellant still remains in violation of the August 2014 order made in the defamation action.
[17] The appellant was accorded procedural fairness throughout these proceedings. I see no merit to the proposed appeals in the materials before me.
[18] I conclude that in all of the circumstances, justice does not require that an extension of time to appeal be granted.
[19] The appellant’s motion is therefore dismissed.
“Justice L. C. Leitch”
Justice L. C. Leitch
Released: December 02, 2015
CITATION: Aliyar v. Zeinali, 2015 ONSC 7141
DIVISIONAL COURT FILE NO.: 2305/15, 2309/15
DATE: 20150212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Siamak Aliyar
Appellant
– and –
Amir Houshang Zeinali
Respondent
REASONS FOR JUDGMENT
LEITCH J.
Released: December 2, 2015