Court File and Parties

Citation: Edelstein v. Monteleone, 2017 ONSC 5915 Divisional Court File No.: 420/17 Date: 2017-09-12

Superior Court of Justice – Ontario Divisional Court

Re: David Edelstein, Appellant/Plaintiff And: Antonio Monteleone Sr., Domenic Monteleone, Agostino (Gus) Monteleone, and Antonio (Tony) Monteleone, Respondents/Defendants

Before: Spies J.

Counsel: David Edelstein, Self-Represented Appellant/Plaintiff J. Mohammed, for the Respondents/Defendants

Heard at Toronto: September 12, 2017

Endorsement

[1] Mr. Edelstein brings this motion for an extension of time for service and filing of his Motion for Leave to Appeal the Costs Endorsement of Cavanagh J. dated June 23, 2017. He prepared a Notice for Leave to Appeal which he emailed to Salvatore Mannella, the solicitor of record for the Respondents, on July 10, 2017 – which was the 15th day following the release of Cavanagh J’s costs decision. When he went to file his Notice for Leave to Appeal with proof of service Mr. Edelstein was advised that he had to serve the firm personally. Mr. Mannella had responded to the email the same day so he clearly received it. He did not acknowledge receipt, however, until July 12, 2017 and so the Divisional Court would not accept the filing on that basis.

[2] Since then, for reasons I am unable to fathom, Mr. Mannella has refused to consent to an order to permit a late service/filing of the Notice for Leave to Appeal. Instead he forced Mr. Edelstein to bring this motion. He filed no responding material. Ms. Mohammed attended resisting the motion on the basis that there is no merit to the appeal – an issue that is usually reserved to the judge hearing the appeal. To make matters worse, Ms. Mohammed has presented a Bill of Costs for $2,313.60 on a partial indemnity basis which suggests the Respondents are being billed $3,000 for this totally ridiculous response to an issue that should never have come to this.

[3] Accordingly, an order shall go permitting Mr. Edelstein to file his Notice for Leave to Appeal by September 15, 2017. No Affidavit of Service is required – the Respondents’ counsel clearly have notice.

[4] Mr. Edelstein is entitled to costs even as a self-represented party. He has not filed any proof of loss of income or receipts for his disbursements. However, he gave up 1½ hours of time until this matter could be heard and decided, and took considerable time to prepare professional materials. His disbursements include the filing fee and the cost to pay someone to swear his affidavit. In my view an order for costs in the amount of $1,000 is reasonable and shall be payable by the Respondents to Mr. Edelstein within 30 days of today.

[5] To avoid any issue with the formal order for today being delayed, Mr. Edelstein may prepare a draft order for my approval and signature and provide it to the Divisional Court Office. Once he picks it up he shall scan it and email it to Mr. Mannella forthwith.

[6] Mr. Mannella shall provide a copy of this endorsement to the Respondents.

Spies J.

Date: September 12, 2017 - Reasons given orally October 18, 2017 – Typed Endorsement Released