Court File and Parties
CITATION: Joubarne v. Kellam, 2018 ONSC 3997
DIVISIONAL COURT FILE NO.: 18-76208
DATE: 2018/06/27
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Grace Joubarne, Moving Party (Plaintiff)
AND
Gary Kellam, Judith Spence, National Guild of Hypnotists, Ottawa-Outaouais Chapter, National Guild of Hypnotists Inc., Respondents (Defendants)
BEFORE: Justice R. Ryan Bell
COUNSEL: Grace Joubarne, Self-represented Rod A. Vanier for Gary Kellam Jaye Hooper for Judith Spence
HEARD: In writing
ENDORSEMENT RE: MOTION TO EXTEND TIME
The Motion Before the Court
[1] Grace Joubarne wishes to appeal the February 1, 2017 judgment of Deputy Judge Leclaire. She seeks an order extending the time to file her appeal to Divisional Court.
[2] In a second motion, Ms. Joubarne seeks leave to appeal the costs order made by the Deputy Judge. This endorsement deals only with the motion to extend time.
Background
[3] Ms. Joubarne claimed against Gary Kellam and Judith Spence for defamation and intentional interference with a business relationship. The organizations named in the title of proceedings were not served with Ms. Joubarne’s claim and were not represented at trial.
[4] Ms. Joubarne alleged that Mr. Kellam and Ms. Spence had defamed her, had caused her to be expelled from the National Guild of Hypnotists, and had attempted to convince the publisher of Ottawa Natural Magazine to cease publishing information about her and articles she had written.
[5] Mr. Kellam and Ms. Spence were the successful parties at trial. In his reasons, the Deputy Judge stated that “[g]iven the context as set by Ms. Joubarne, the other parties did not come close to matching it.” The Deputy Judge found nothing defamatory in anything written by Mr. Kellam, and found that Ms. Joubarne’s comments were defamatory of Ms. Spence. The Deputy Judge stated that in his view, the case was not about Ms. Joubarne’s damages; rather, it was “about the importance that [Ms. Joubarne] attaches to her view about the difference between hypnotist and hypnotherapist, insurance receipting with the hypnotist community, and creating trouble for 2 individual defendants and the Ottawa chapter of the NGH.”
[6] The Deputy Judge’s decision was released on February 1, 2017. The parties, through counsel, filed written submissions on costs. The decision on costs was released on April 6, 2018. Ms. Joubarne then moved for an extension of time to file her appeal and, separately, moved for leave to appeal the costs award.
Analysis
[7] The test on a motion to extend time is well-settled. The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:
(i) whether the moving party formed a bona fide intention to appeal within the relevant time period;
(ii) the length of, and explanation for, the delay in filing;
(iii) any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and
(iv) the merits of the proposed appeal (Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131).
[8] The Courts of Justice Act and the Rules of Civil Procedure clearly contemplate that a costs judgment, when the subject of a separate proceeding – as is the case here – is a separate determination rather than a part of the proceeding on the merits. The merits judgment is a separate appealable judgment (Byers v. Pentex Print Master (2003), 2003 42272 (ON CA), 62 O.R. (3d) 647 (C.A.), at para. 16).
[9] The Deputy Judge released his decision on the merits on February 1, 2017. Ms. Joubarne did not seek to appeal the merits judgment until after the Deputy Judge released his decision on costs, 14 months after the decision on the merits was released.
[10] I am unable to conclude that Ms. Joubarne formed a bona fide intention to appeal within the relevant time period. In her affidavit, Ms. Joubarne states that she relied on staff at the Small Claims Court office regarding the correct procedure and timing in the filing of her appeal. However, I note that when costs submissions were made to the Deputy Judge, Ms. Joubarne was represented by counsel. There is no explanation in Ms. Joubarne’s affidavit why she did not file a notice of appeal when she was represented by counsel.
[11] The delay in this case is more than a year. This is not a case of inadvertence where a party missed a filing deadline by a brief period of time. Ms. Joubarne points to the fact that she is self-represented and the advice she claims to have received from court staff; however, I note again, her failure to explain why she did not file her notice of appeal while she was still represented by counsel.
[12] The respondents claim they would be prejudiced in two ways if an extension of time were granted. First, they say it would be unfair and prejudicial to lose the “finality” of the Deputy Judge’s decision released over 14 months ago. Certainly this prejudice is exacerbated due to the passage of time. Second, they say that Ms. Joubarne seeks to raise new issues on appeal, beyond the issues that were raised and dealt with at trial, and that it would be prejudicial to them to “grant [Ms. Joubarne] a platform to raise additional issues that are beyond the scope of an appeal.”
[13] This second ground of prejudice relates to the proposed appeal itself. I turn, therefore, to a consideration of the merits of the proposed appeal.
[14] Extensions of time for meritless appeals will be denied, even if other factors militate in favour of granting an extension (1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, at para. 7). I am unable to find any merit in the proposed appeal.
[15] The Deputy Judge heard evidence and submissions over eight days. His reasons for judgment reflect his careful weighing of the documentary evidence and oral testimony, and he correctly applied the relevant jurisprudence. In particular, the Deputy Judge carefully considered the context in which the statements alleged to be defamatory were made. Indeed, as the Deputy Judge stated at para. 4 of his decision, “[b]ecause the issue of context, about which I will have more to say later, is so important in defamation cases, I reproduce, without any editing, the emails between the individual parties and Miss Torrent…” The Deputy Judge found that Ms. Joubarne’s February 14, 2010 email “set the tone” for the subsequent exchanges and concluded that in that email, Ms. Joubarne defamed Ms. Spence’s ability and competence as a hypnotist. The Deputy Judge found nothing defamatory in anything written by Mr. Kellam.
[16] In his decision, the Deputy Judge addressed Ms. Joubarne’s allegations of witness tampering.
[17] The Deputy Judge also considered Ms. Joubarne’s evidence of economic loss and concluded that there was “very little reliable evidence.” He correctly applied the legal principle that the plaintiff bears the onus of proving her claimed loss and that where the absence of evidence makes it impossible to assess damages, the plaintiff will be entitled to only nominal damages.
[18] Ms. Joubarne’s motion materials confirm the view expressed by the Deputy Judge that this case was never about Ms. Joubarne’s damages; rather it was about her views as to the differences between hypnotists and hypnotherapists and other issues in the hypnotist community. I agree with the respondents’ characterization that the proposed appeal amounts to a collateral attack on the Deputy Judge’s decision. There is nothing in the material before me which undermines the findings of the Deputy Judge. I conclude that the proposed appeal does not have merit.
[19] In all these circumstances, the justice of the case does not require an extension.
[20] For these reasons, the motion to extend time to file the notice of appeal is dismissed. As counsel for Ms. Spence appears to have “taken the lead” in responding to the motion, I award costs to Ms. Spence fixed at $1000, including disbursements and HST, and costs to Mr. Kellam fixed at $400, including disbursements and HST.
[21] Ms. Joubarne’s motion seeking leave to appeal the Deputy Judge’s order as to costs remains to be determined. As there appears to have been some uncertainty among the parties as to whether the leave motion as to costs would be determined at the same time as the motion to extend time, all parties are allowed until July 27, 2018 at 4:00 p.m. to serve and file any additional written materials on the leave motion. The motion will then be placed before a judge in chambers for determination.
Madam Justice R. Ryan Bell
Date: June 27, 2018
CITATION: Joubarne v. Kellam, 2018 ONSC 3997
DIVISIONAL COURT FILE NO.: 18-76208
DATE: 2018/06/27
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Grace Joubarne, Moving Party (Plaintiff)
AND
Gary Kellam, Judith Spence, National Guild of Hypnotists, Ottawa-Outaouais Chapter, National Guild of Hypnotists Inc., Respondents (Defendants)
BEFORE: Justice R. Ryan Bell
COUNSEL: Grace Joubarne, Self-represented Rod A. Vanier, for Gary Kellam Jaye Hooper, for Judith Spence
HEARD: In writing
ENDORSEMENT
re: motion to extend time
RYAN BELL J.
Released: June 27, 2018