Citation: Malhotra v. Stunt, 2016 ONSC 7378
DIVISIONAL COURT FILE NO.: DC-13-00000096-00
DATE: 20161018
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, HAMBLY and MEW JJ.
B E T W E E N :
VEENA MALHOTRA Moving Party/Defendant
– and –
PAUL STUNT Respondent/Plaintiff
Veena Malhotra, in person
Paul Stunt, in person
HEARD in Brampton: October 18, 2016
DAMBROT J. (ORALLY):
[1] The responding party brought an action against the moving party in Small Claims Court for cutting his trees without permission. On February 12, 2013, the Small Claims Court judge found for the respondent, and awarded $3,500 in damages against the moving party, and on June 18, 2013, awarded costs to the respondent. On July 16, 2013, the moving party filed a notice of appeal to the Divisional Court from that decision.
[2] On August 13, 2015, Baltman J., sitting as a single judge of the Divisional Court, dismissed the moving party’s appeal for delay, on the basis that the respondent had failed to perfect the appeal. She noted that although the moving party had left her appeal material with the respondent prior to the date of the motion, the appeal had not been perfected, and the moving party did not appear on the motion.
[3] The moving party brings this motion pursuant to s. 21(5) of the Courts of Justice Act to set aside the order of Baltman J.
[4] A panel will not interfere with a decision of a motions judge pursuant to s. 21(5) unless he or she has made an error of law or a palpable and overriding error of fact: CAS Ottawa v. L.F. (1) and L.F. (2), 2016 ONSC 4044, Stamm Investments Limited v. Ryan, 2016 ONSC 6293.
[5] On this motion, the moving party has filed an affidavit in which she swears that, unbeknownst to the motions judge, she had filed her appeal material with the court shortly before noon on the day before the hearing of the motion, and she was advised by court staff that it was unnecessary for her to appear on the motion.
[6] Accepting the truth of the affidavit of the moving party, the fact remains that this appeal was not perfected on time, and has still not been perfected. Rule 61.09(1)(b) required the moving party to perfect the appeal within 60 days of receiving notice that the transcripts were completed. She received that notice on January 3, 2014, and was required to perfect the appeal by March 4, 2014. In fact, she filed her materials on August 12, 2015, more than one year late, and without an order of the court relieving him of the requirement to comply with the rules. There is no adequate explanation for this delay. The personal circumstances referred to in submissions today to explain the delay are not part of the evidentiary record before us.
[7] In considering whether or not it is appropriate to set aside the order of Baltman J., we are obliged to take into account the justice of the case. Here, the grounds of appeal essentially represent an effort to reargue the matter, relying on evidence and arguments that were not before the trial judge. There is no reasonable prospect that this appeal will succeed.
[8] In all of these circumstances, despite the fact that the motions judge did not know that the moving party had filed her material the day before the hearing before her, I would decline to interfere with the result.
[9] The motion is denied.
DAMBROT J.
HAMBLY J.
MEW J.
Date of Reasons for Judgment: October 18, 2016
Date of Release: November 28, 2016
CITATION: Malhotra v.Stunt, 2016 ONSC 7378
DIVISIONAL COURT FILE NO.: DC-13-00000096-00
DATE: 20161018
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, HAMBLY and MEW JJ.
B E T W E E N :
VEENA MALHOTRA Moving Party/Defendant
– and –
PAUL STUNT Respondent/Plaintiff
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: October 18, 2016
Date of Release: November 28, 2016