Haight v. Burrows, CITATION: 2017 ONSC 4025

COURT FILE NO.: DC11583/17

DATE: 2017-06-29

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: John Haight, Plaintiff, Respondent in appeal

AND: Rachel Burrows, Defendant, Appellant

BEFORE: Mr Justice Ramsay

COUNSEL: A. Stewart for Appellant; Respondent self-represented

HEARD: June 28, 2017 at Welland

ENDORSEMENT

[1] The Appellant moves for an extension of time within which to file a notice of appeal from the judgment of a deputy judge of the Small Claims Court. She also seeks leave to amend her certificate respecting evidence. Leave to amend the certificate is denied. The Respondent takes the position that all exhibits are necessary for the appeal.

[2] Judgment was given to the Respondent on September 27, 2016. The Appellant caused a notice of appeal to be served on the Respondent within 30 days. The transcript of the trial, which lasted 8 days, was ordered at the same time and was completed on December 28, 2016. The Respondent was served with the transcript in February 2017.

[3] The appeal has not been filed or perfected because of a number of mistakes made by the Appellant’s counsel (not Mr Stewart). He tried to file the appeal in Hamilton instead of Welland and he tried to file an amended certificate respecting evidence without the consent of the Respondent. As a result the matter was transferred to Welland and the Appellant brought the motion that I heard today.

[4] The delay is long, but not so long as to deprive the Respondent of the ability to respond to the appeal. More delay than usual in these cases would be expected because of the length of the trial. The additional delay is explained by the errors of the Appellant’s counsel, not the Appellant herself. The Appellant’s counsel has been diligent in taking steps to correct the errors and get the appeal on track. In these circumstances I am obliged to extend time to appeal. Given the delay in a procedure that is designed to be expeditious I impose the following terms:

a. The Appellant may file the notice of appeal on or before July 7, 2017. The transcript and appellant’s factum shall be filed at the same time.

b. The Appellant shall file an appeal book containing all of the exhibits that are reasonably capable of being reproduced on or before July 15, 2017.

c. The Respondent is not obliged to file a factum, but if he chooses to do so it shall be filed on or before July 29, 2017. He may, if he wishes, rely on the factum that he filed on the motion.

d. The appeal shall be heard on September 8, 2017 at 10 a.m. Each party will be allowed one hour for oral argument.

e. The Appellant shall pay to the Respondent the costs of this motion fixed at $350. If the costs order is not satisfied before the hearing of the appeal the Appellant will not be allowed to proceed.

J.A. Ramsay J.

Date: 2017-06-29