Court File and Parties

CITATION: Brazau v. Toronto (City), 2017 ONSC 3737

DIVISIONAL COURT FILE NO.: 572/15

DATE: 20170627

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ERIC BRAZAU, Plaintiff/Applicant

AND:

THE CITY OF TORONTO, Defendant/Respondent

BEFORE: SPIES J.

COUNSEL: No one appearing for the Plaintiff/Applicant

Alison Mintoff, for the Defendant/Respondent

HEARD at Toronto: June 12, 2017

ENDORSEMENT

[1] Eric Brazau seeks an extension of time to bring a motion for leave to appeal the costs order of Justice Corbett dated May 12, 2014. This order was made after Corbett J. granted the City of Toronto’s (City) cross-motion to strike out Mr. Brazau’s statement of claim with leave to amend but only for one of the three causes of action set out in the claim. Mr. Brazau had brought a motion to amend his claim to plead two additional causes of action.

[2] The motion judge gave brief reasons for his decision with respect to costs after receiving a Costs Outline from the City and hearing oral submissions from the parties. The City’s Costs Outline, on a partial indemnity basis, totals $5,141. The motion judge determined that the City was “substantially successful” and entitled to partial indemnity costs, which he fixed at $5,000 all inclusive.

[3] This action was commenced in 2011. The delay in the hearing of the motion by the motion judge was largely due to adjournment requests by Mr. Brazau and the fact that he was in custody for a period in 2013.

[4] After the motion was argued and decided, Mr. Brazau was in custody again from July 29, 2014 to April 17, 2015. He did not do anything about appealing the costs order of the motion judge until he contacted counsel for the City in May 2015. The City ultimately consented to an extension of time for Mr. Brazau to bring his motion for leave to appeal and he had until January 15, 2016, to file his materials for the leave motion.

[5] Mr. Brazau missed this deadline and in January 2017 he informed counsel for the City that he wanted to bring another motion to extend the time for leave to appeal. A date for the motion of March 30, 2017 was agreed upon. When Mr. Brazau missed the deadline agreed upon for the filing of his materials, the motion was rescheduled. He did not file all of his materials for the motion until May 8, 2017.

[6] In his affidavit in support of the motion Mr. Brazau deposes that he was incarcerated from November 14, 2015 until November 25, 2016 and that after his release he had “to get my life back together” and find a place to live and a job. He states it was always his intention to appeal.

[7] The City filed an affidavit sworn by the Deputy Superintendent of the Toronto South Detention Centre (TSDC) where Mr. Brazau was incarcerated. This affidavit sets out all of the ways that Mr. Brazau could have prepared materials for this motion while incarcerated. The affidavit states that Mr. Brazau made no requests to access any of the available resources to do this, during his period of incarceration.

[8] In response to this affidavit Mr. Brazau filed a written request for an adjournment so that he could obtain a further affidavit from TSDC confirming that for the vast majority of the first three months of his incarceration it was in lock down, the implication being that during that period of time he could not have accessed these resources.

[9] Rather than adjourn the matter I suggested that argument proceed on the basis that Mr. Brazau could obtain an affidavit to this effect and Ms. Mintoff consented to proceeding on this basis.

[10] In the course of submissions Mr. Brazau provided further information contradicting the affidavit of the Deputy Superintendent; essentially taking the position that TSDC staff did not advise him of these resources and that they would not necessarily agree to give him access to them. He admitted, however, that he made no efforts to seek assistance.

[11] The test for an extension of time to file a Notice of Appeal is well established. The court must consider a number of factors:

(a) Whether the moving party formed an intention to appeal in a relevant appeal period;

(b) The length of the delay and the explanation for the delay;

(c) Any prejudice to the responding party;

(d) The merits of the appeal; and

(e) Whether the “justice of the case” requires an extension.

(See Khahra v. College of Veterinarians of Ontario, 2016 ONSC 4692 (Div. Ct.) at para. 6.)

[12] The City does not dispute that Mr. Brazau formed an intention to appeal within the relevant period. The City also concedes that there is limited prejudice to the City apart from the costs incurred while the litigation is permitted to carry on.

[13] The length of delay in this case is very long; just over three years have passed since the costs order in issue was made. In my view Mr. Brazau has not satisfactorily explained the delay in bringing this motion. This is his second request for an extension. He admits he took no steps to advance a leave to appeal motion while he was incarcerated. Accepting that he could not have done so for the first three months of his incarceration, that means that he would have necessarily missed the first extension date of January 15, 2016. However, Mr. Brazau was in custody during this time for one year and I do not accept his position that he would not have had the ability to prepare his motion record and factum during that period of time. Furthermore, Mr. Brazau should have given this motion for an extension more attention after he was released in late November 2016 and not waited for another six months to bring this motion. As Mr. Brazau well knows, he should have sought leave to appeal this costs decision within 15 days of the order. His conduct has been inconsistent with someone who has a genuine ongoing intention to bring this proposed appeal.

[14] My conclusion in this regard is supported by the decision from this court in Samuels v. Canada (Attorney General), 2016 ONSC 6706. Mr. Samuels was a self-represented plaintiff incarcerated in the TSDC and that period of time overlapped with Mr. Brazau. He was able to prepare, serve, and file motion materials with this court. I see no reason why Mr. Brazau could not have done the same.

[15] Turning to the merits of the motion for leave, I do so not with a view to determining whether the motion for leave would succeed, but to determine whether it has so little merit that the court could reasonably deny the important right of an appeal: see Mauldin v. Cassels Brock & Blackwell LLP, 2011 ONCA 67 at para. 10. In considering this part of the test, the first question is what the test for leave for this order is. When dealing with the appeal of a costs order only, to determine this court’s jurisdiction, one has to look first at the nature of the order that resulted in the costs order. The fact that no appeal has been taken from an interlocutory order and there is only an appeal with respect to costs does not convert the costs order into a final order; see Yakabuski v. Yakabuski Estate, [1988] O.J. No. 2870 (Div. Ct.) at para. 2.

[16] In this case the underlying order was both interlocutory and final to the extent that certain claims asserted by Mr. Brazau were dismissed without leave to amend. To the extent the order is interlocutory; Rule 62.02(4) applies. As there is no suggestion that there are any conflicting decisions with the decision of the motion judge, the branch of the test that Mr. Brazau must meet is Rule 62.02(1)(b). The onus is on the applicant to satisfy this court that there is good reason to doubt the correctness of the order made by the motion judge and that the proposed appeal involves matters of such importance that, in this court’s opinion, leave to appeal should be granted.

[17] The words in Rule 62.02(4)(b) have been interpreted to make it clear that “matters of such importance” that leave to appeal should be granted are matters of general importance, not matters of particular importance relevant only to the litigants; see ComTrade Petroleum Inc. v. 490300 Ontario Limited (1992), 7 O.R. (3d) 542 (Div. Ct.).

[18] In this case there is absolutely no matter of general importance to the proposed motion for leave beyond the parties to this litigation.

[19] With respect to that part of the motion judge’s costs order that is final, since the costs order falls within the monetary limits of ss. 19(1.1) and 19(1.2) of the Courts of Justice Act (Act), leave of this court is required pursuant to s. 133 (b) of the Act which provides that no appeal lies without leave of the court to which the appeal is to be taken where the appeal is only as to costs that are in the discretion of the court that made the order for costs.

[20] The test for leave from a final costs order is whether or not there are “strong grounds upon which the appellate court could find that the judge erred in exercising his discretion”; see McNaughton Automotive Ltd. v. Cooperators General Insurance Co., 2008 ONCA 597 at para. 24, citing with approval Brad-Jay Investments Ltd. v. Szijjarto, [2006] O.J. No. 5078 (ONCA) at para. 21.

[21] The Court of Appeal has also stated that “[l]eave to appeal a costs order, standing alone, is granted only sparingly,” see Inter-Trust Mortgage Investment Corp. v. Robinson, 1999 CarswellOnt 1733 (C.A.) at para. 12. In a decision of the Supreme Court of Canada; Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, Arbour J. said: “A court should set aside a cost award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong,” at para. 27.

[22] I am not satisfied that there are strong grounds upon which this court could find that the motion judge erred in exercising her discretion. The reasons of the motion judge explain how he arrived at the quantum fixed of $5,000. It was an exercise of his discretion and I see no error.

[23] In summary, even if Mr. Brazau were permitted to proceed with his motion, in my view there is no chance he would be successful on the appeal.

[24] For all of these reasons in my view, the interests of justice do not weigh in favour of granting a further extension. The motion to extend time to file a Notice of Appeal is dismissed.

[25] As the successful party, the City is entitled to costs. The City provided a Costs Outline and asks for costs in the amount of $850 which in my view is a very reasonable request in all of the circumstances. It is a significant reduction from the costs actually incurred by the City. Accordingly, Mr. Brazau shall pay costs of the motion to the City in the amount of $850 all inclusive within 30 days of the release of this endorsement.

SPIES J.

Date: June 27, 2017