DIVISIONAL COURT FILE NO.: 587/15 DATE: 2017/11/30
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
U-SHEAK KOROMA
U-Sheak Koroma, acting in person,
Appellant
– and –
CANDACE MACDOUGALL, DAVIDE LAZZARO, TD CANADA TRUST FINANCIAL SERVICES OR TD TRUST INVESTMENT INC.
Chad Pilkington, for the Respondents
Respondents
HEARD at Toronto: November 30, 2017
KITELEY J. (Orally)
[1] This is a motion by Mr. Koroma to set aside the Rule 58.13 dismissal order dated December 2, 2016.
[2] There was an incident in the Toronto Dominion Bank on August 21, 2014 which led Mr. Koroma to issue a Statement of Claim in the Small Claims Court in the Fall of 2014.
[3] The claim was based on damages for defamation and discrimination. The trial took place on October 13, 2015 at which time the Deputy Judge dismissed the claim and ordered the Appellant to pay costs of $2,750.00.
[4] On November 10, 2015, Mr. Koroma served and filed a Notice of Appeal and shortly after that he served and filed an appeal book.
[5] On November 15, 2016, the Registrar of the Divisional Court sent written notice to the appellant that his appeal would be dismissed unless he perfected it within a specified time frame.
[6] On December 2, 2016, the Registrar made the order to dismiss the appeal with costs.
[7] On June 2, 2017, the appellant reached out to the lawyers for the Defendants raising the issue of pursuing his appeal.
[8] According to the decision of the Court of Appeal in Paulsson v. Cooper 2010, ONCA 21 at para. 2, there are four criteria that the appellant must address in a motion to set aside a dismissal order.
[9] The first is whether the appellant had an intention to appeal within the time for bringing an appeal. As indicated in the chronology above, he did serve and file his Notice of Appeal in a timely way followed by his appeal book.
[10] The second factor is the length of delay. As indicated in the review of the chronology, there are two time periods. The first is between November 10, 2015 when he served and filed his Notice of Appeal and June 2, 2017 when he reached out to the Defendants with a view to try to set aside the dismissal order. That delay is 17 to 18 months.
[11] The second period of delay is between November 15, 2016 when the notice of pending dismissal was forwarded followed by the December 2, 2016 dismissal order and June 2, 2017, a period of seven months. On both accounts, the delay is significant.
[12] Part of the second criterion is the explanation for delay and this is the factor on which Mr. Koroma has spent much of his materials and his submissions.
[13] He has provided evidence that he has experienced some mental health issues. He began seeing a psychiatrist on August 7, 2014. Apparently, his mental health issues were triggered by a car accident in January 2014.
[14] On October 8, 2015, he authorized the Law Society to obtain information from his psychiatrist in relationship to his status as a licensee paralegal of the Law Society.
[15] In a letter dated October 23, 2015, Dr. Cooper informed the Law Society as to his treatment and gave his opinion that the appellant was not able at that time to practice as a paralegal.
[16] The appellant tells me he has been suspended and he is looking to be reinstated. I do note that the trial before the Deputy Judge and the decision by the Deputy Judge were dated October 13, 2015 and the Notice of Appeal and appeal book immediately thereafter. In other words, during the period of time that Dr. Cooper was saying that the appellant was unable to practice as a paralegal, he was none-the-less keenly involved in the case he had brought to the Small Claims Court.
[17] There is nothing in the record that helps me understand how he was able to function in one environment but not the other. Because of the overall conclusion I have reached, I do not need to have more information on that point.
[18] On June 8, 2017, Dr. Cooper wrote his second letter which very positively said the appellant is on his way to recovery and the appellant tells me he is now pursuing readmission.
[19] The appellant relies on the decision in Saadati v. Moorehead, 2017 SCC 28 a recent decision of the Supreme Court of Canada on the point of the extent to which expert evidence of mental health is required. That was in a different context and so not helpful. However, in this case the appellant has provided evidence from Dr. Cooper and I am satisfied that he suffered mental health issues at least from the end of 2014 to the Spring 2017, given that his last meeting with Dr. Cooper before Dr. Cooper’s second letter was in May 2017.
[20] There is no specific evidence linking the mental health issues that he has experienced to the causes of delay in this case but on this motion to set aside dismissal, I will accept that he has satisfied the criterion of explanation for the delay based upon the mental health issues he was experiencing.
[21] The third criterion in Paulsson is whether there is prejudice to the Respondent caused by the delay and as is often the case, there is annoyance on the part of the defendants but no evidence of prejudice caused by the delay.
[22] I come then to the fourth factor, which is the justice of the case. On the analysis of this factor, the court is considerably hampered because the appellant has not provided a transcript of the short trial and oral reasons for decision.
[23] On the behalf of the Respondents to the motion, I have an affidavit of an associate of the law firm acting for respondents who summarized the points that she understood the Deputy Judge made in the oral reasons for decision. Mr. Koroma does not accept that summary but without a transcript that is all I have.
[24] Mr. Koroma says that he has ordered a transcript and he paid $250.00 of the $750.00 but today I have no proof of ordering, no proof of total cost, no proof of partial payment, no proof when the transcript will be available and no explanation as to why he did not provide that for today. That was a crucial document for purposes of determining the justice of the case.
[25] That fourth criterion in Paulsson encompasses the merits. I am not persuaded that there is merit to the appeal on defamation based upon the deficiencies in the Statement of Claim; the absence of any evidence at trial from bystanders as to what was said and by whom and the impact on them; and, even without a transcript, on the basis of what I do know, the Deputy Judge had to decide on the credibility and reliability of the bank witnesses or of the appellant. Such findings are entitled to deference.
[26] I understand discrimination was also alleged but there is nothing before me that would allow me to find there is merit to the appeal on that cause of action.
[27] I am not persuaded that the justice of the case warrants an order and therefore the motion to set aside the Rule 58.13 dismissal order is dismissed.
[28] I have endorsed the Appellant’s Motion Record as follows: “Motion by appellant for an order setting aside Rule 58.13 dismissal by Registrar. For oral reasons given, motion is
dismissed. Appellant shall pay costs to respondents in the amount of $1,750.00. Counsel for respondents may have this order signed and entered without approval by appellant.”
___________________________ KITELEY J.
Date of Reasons for Judgment: November 30, 2017
Date of Release: December 4, 2017
DIVISIONAL COURT FILE NO.: 587/15 DATE: 2017/11/30
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
U-SHEAK KOROMA
Appellant
– and –
CANDACE MACDOUGALL, DAVIDE LAZZARO, TD CANADA TRUST FINANCIAL SERVICES OR TD TRUST INVESTMENT INC.
Respondents
ORAL REASONS FOR JUDGMENT
KITELEY J.
Date of Reasons for Judgment: November 30, 2017
Date of Release: December 4, 2017