Court File and Parties

Citation: Nemmour v. Dixon Hall Toronto, 2017 ONSC 1361 Divisional Court File No.: 134/16 Date: 2017-03-02 Superior Court of Justice - Ontario (Divisional Court)

Re: Mohamed Nemmour v. Dixon Hall Toronto, Harvey Stein

Before: Justice Swinton

Counsel: Mohamed Nemmour in person Daria Risteska, for the Respondents

Heard at Toronto: February 27, 2017

Endorsement

[1] Mr. Nemmour has brought a motion to set aside the dismissal of his appeal by the Registrar for delay. He seeks to appeal the judgment of Pollak J. dated February 18, 2016 that dismissed his application after a summary trial.

[2] In determining whether such an order should be granted, the Court considers the following factors:

• Whether the appellant had an intention to appeal within the relevant appeal period • The length of the delay and the explanation for the delay • Prejudice to the respondent • The merits of the appeal • The overall justice of the case.

[3] I am satisfied that the appellant had an intention to appeal within the appeal period, as he filed a timely Notice of Appeal on March 21, 2016, and he ordered the transcripts in April 2016. He obtained an order that was issued and entered by early October 2016.

[4] The Registrar dismissed his appeal for delay on November 2, 2016. The appellant moved quickly to bring a motion to set aside the dismissal.

[5] I see no prejudice to the respondents from the delay.

[6] My one concern in this motion was the merits of the appeal – more specifically, whether there is jurisdiction in the Divisional Court to hear the appeal. The relief sought before the trial judge included declaratory and injunctive relief, as well as punitive damages in an unspecified amount. The trial judge dismissed the application.

[7] Pursuant to s. 19(1.2) of the Courts of Justice Act, an appeal lies to the Divisional Court from a final order of a judge of the Superior Court of Justice dismissing a claim for an amount not more than the amounts set out in paragraphs (a) and (b) – that is, a single payment of not more than $50,000 or a periodic payment of not more than $50,000 in the twelve month period specified, exclusive of costs.

[8] In the present case, the formal order dismisses the application. While the appellant sought punitive damages, he did not specify an amount in his Notice of Application. Thus, the amount claimed is less than $50,000. The only issue is the significance of his claim for declaratory and injunctive relief, which did not succeed.

[9] In an analogous case, the Court of Appeal held that an appeal lay to the Divisional Court, even though the notice of application sought various declarations. The Court found that the claim was, in substance, for monetary relief of less than $50,000 (Chijindu v. Prudential Property Management Inc., 2015 ONCA 134 at para. 5).

[10] Applying that reasoning in the present case, I am satisfied that the Divisional Court has jurisdiction. As to the merits of the appeal, I am not in a position to assess them based on the limited material before me.

[11] After assessing the various factors, I conclude that the motion to set aside the dismissal for delay should be granted. The appellant shall have seven days from the date of this decision to perfect his appeal, and the respondent shall file its material in accordance with the rules.

[12] An order is to go in the form of the draft signed by me. No costs are sought.

Swinton J.

Date: March 2, 2017