CITATION: Bedi v. Rahal, 2018 ONSC 1518
DIVISIONAL COURT FILE NO.: DC-15-0000089-00 DATE: 20180306
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, WILTON-SIEGEL, MYERS JJ.
BETWEEN:
Balwinder Singh Bedi Appellant
– and –
Surgeet Singh Rahal Respondent
D. Paul, for the Appellant
S. Grewal, for the Respondent
HEARD at Brampton: March 5, 2018
SACHS J. (Orally)
[1] This is a motion to set aside or vary the order of André J dismissing the Appellant’s appeal for failure to perfect within the time prescribed by Rule 61.09(1). In Marsden v. Her Majesty the Queen, 2012 ONSC 6118, the Divisional Court stated that a panel should only intervene to vary or set aside the order of a single judge if he or she made an error of law or a palpable and overriding error of fact.
[2] In this case we find that this threshold has been met as the motion judge made an error of law. The motion before him was brought under Rule 61.13(1)(b), namely failure to perfect within the time limits required pursuant to Rule 61.09(1). Pursuant to Rule 61.09(1), an Appellant must perfect an appeal within 60 days after receiving notice that the evidence has been transcribed.
[3] When the motion judge heard the motion he had evidence from the Respondent that while the transcripts had been ordered in a timely manner, the evidence had not yet been transcribed. Accordingly, the 60-day period under 61.09(1)(b) had not been triggered, which is a complete answer to the motion as framed. As such, the motion judge erred in law when he failed to dismiss the motion.
[4] For this reason, we are setting aside the motion judge’s order dismissing the appeal. However, we do so without prejudice to the Respondent’s right to bring any other motion that he may be entitled to bring based on the Appellant’s alleged failure to move this appeal forward in a timely fashion.
[5] The Appellant’s affidavit on the motion before André J., while filed, was never properly served on the Respondent to this motion. Thus, the Respondent had no opportunity to withdraw or reframe the motion. For this reason we are denying the Appellant his costs of the motion.
Sachs J.
I agree _______________________________
Wilton-Siegel J.
I agree _______________________________
Myers J.
Date of Reasons for Judgment:
Date of Release:
CITATION: Bedi v. Rahal, 2018 ONSC 1518
DIVISIONAL COURT FILE NO.: DC-15-0000089-00 DATE: 20180306
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, WILTON-SIEGEL, MYERS JJ.
BETWEEN:
Balwinder Singh Bedi
– and –
Surgeet Singh Rahal
ORAL REASONS FOR JUDGMENT
Sachs J.
Date of Reasons for Judgment: March 6, 2018
Date of Release: