Court File and Parties
CITATION: Singh v. Toronto Police Services Board, 2018 ONSC 5510
DIVISIONAL COURT FILE NO.: 298/15 DATE: 20180920
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MARROCCO A.C.J.S.C., THORBURN and D. EDWARDS JJ.
BETWEEN:
GEORGE B. SINGH (“KNIA SINGH”)
Daniel Iny and Geetha Philipupillai, for the Applicant
Applicant/Moving Party
– and –
TORONTO POLICE SERVICES BOARD and CHIEF OF THE TORONTO POLICE SERVICE
Brennagh Smith, for the Respondent Toronto Police Services Board
Scott Hutchison and Mark Strychar-Bodnar, for Chief of the Toronto Police Service
Respondents/Responding Party
HEARD at Toronto: September 18, 2018
Reasons for Judgment
D. EDWARDS J.
[1] The applicant brings two motions. He seeks an order extending the time to bring a motion to vary or set aside Pattillo J.’s October 7, 2016 order, in which the judge affirmed the Registrar’s administrative dismissal order. The applicant also seeks an order setting aside the October 7, 2016 order of Pattillo J. and the Registrar’s dismissal. Finally, he seeks an order to adduce fresh evidence on this motion.
[2] The respondent, Chief of Toronto Police Service, requests both motions be dismissed with costs. The respondent, Toronto Police Services Board takes no position on the applicant’s motions.
Background
[3] These motions arise in the context of an underlying application for judicial review commenced June 10, 2015.
[4] The applicant indicates that he has been the target of unwarranted police interest and investigations solely on the basis of his race, many occasions of which involve the retention of personal information by the Toronto Police Service (“TPS”).
[5] Shortly after the application was commenced, the Ontario government announced that the government would develop new regulations to govern street checks. The applicant and his counsel decided to put further work on the application on hold until the release of the new regulations.
[6] After the release of the new regulations on March 22, 2016, the applicant informed the respondent on April 18, 2016 that he intended to proceed with the application.
[7] On August 4, 2016 the Registrar advised the applicant’s counsel, Mr. Zbogar, pursuant to Rule 68.06(2) of the Rules of Civil Procedure (“Rules”) the application would be dismissed for delay, unless it was perfected within 10 days of the notice. The applicant requested a six-month extension. The respondents granted a one-week extension, as they were not prepared to grant a six-month extension light of the existing extensive delay.
[8] On August 17, 2016 the Registrar dismissed the application for delay pursuant to Rule 68.06(3). Mr. Zbogar brought a motion to dismiss the Registrar’s order. This motion was argued before Pattillo J. on October 7, 2016.
[9] Justice Pattillo dismissed the motion because:
a. Mr. Singh did not demonstrate a bona fide intention to meet the timeline to perfect the application
b. There was no reasonable explanation for the five-month delay following the release of the revised regulations
c. The respondents would suffer prejudice from the delay; and
d. There was no affidavit material setting out the merits of the application such that Mr. Singh did not justify the “justice of the case” requirement.
Delays in Bringing This Motion
[10] Following the oral argument before Pattillo J. on October 4, 2016, Mr. Zbogar erroneously informed the applicant that if he lost the motion and wanted to challenge the decision, the appeal would be to the Court of Appeal, and that there was a 30-day time limit to serve notice of appeal. On October 27, 2016, the applicant confirmed with his counsel that he wished to appeal, and that the counsel should report this matter to LawPRO.
[11] The respondents first heard of the applicant’s intention to appeal on November 7, 2016.
[12] The applicant then began to draft appeal materials on his own. During this time, he learned that the time to file the notice of appeal had passed. The respondents did not consent to an extension of time to seek leave to appeal.
[13] In November 2016, Koskie Misky LLP (“KMLLP”) was retained by LawPRO. A decision was made to complete the materials, including expert reports, for the underlying application prior to completing the appeal of this motion.
[14] On December 8, 2016, KMLLP served the Notice of Motion for leave to appeal to the Court of Appeal. The Notice of Motion was never filed with the Court of Appeal. The applicant first learned of this fact in November 2017.
[15] Following KMLLP’s retainer, Mr. Zbogar resumed his efforts to obtain expert reports and affidavit evidence in support of the underlying application. As he was dealing with ongoing mental health issues, Mr. Zbogar finalized the affidavit of evidence with respect to the appeal in May 2017.
[16] KMLLP completed the first draft of Mr. Zbogar’s affidavit in September 2017 and finalized appeal materials in December 2017, 13 months after repair counsel had taken carriage of the file. The Court of Appeal did not accept materials, but it advised KMLLP that the appropriate court for the matter was the Divisional Court. After a breakdown in the relationship between KMLLP and Mr. Zbogar, Goldblatt Partners LLP were retained as new repair counsel.
[17] The applicant now seeks to adduce as fresh evidence of details of Mr. Zbogar’s circumstances which he states was a period of “extraordinary personal turmoil, mental and emotional distress (including symptoms of depression)”. The applicant states that he did not know and could not know about the circumstances. Had he known he would have insisted that this information be disclosed to the justice or he would have retained a different counsel.
Key issues
[18] The applicant raises the following three issues:
a. Should the court grant the extension of time to bring this motion?
b. Should Pattillo J.’s decision to set aside are varied and should the Registrar’s order be set aside?
c. Should the applicant be permitted to reduce fresh evidence at the hearing of the motion?
Should the Court grant an extension of time to bring this motion?
[19] The parties agree upon the relevant test, which is four elements:
a. The applicant must have formed an intention to appeal within the time for doing so;
b. There must be a reasonable explanation for the delay;
c. There must be no prejudice to the responding parties; and
d. There are merits to the appeal.
Analysis
[20] As we begin our analysis, it is useful to put this matter into perspective. We are being asked to extend the time to bring a motion to vary or set aside an order of Pattillo J. dated October 7, 2016 in which he declined to set aside or vary the Registrar’s dismissal of this application for failure to perfect the application within one year of commencing it. The Registrar’s dismissal occurred after ten days notice of the impending dismissal had been given to the applicant.
[21] Rule 68 of the Rules of Civil Procedure govern applications for judicial review. They are designed to efficiently and expeditiously bring matters to court.
[22] An applicant chooses when to commence the proceeding by deciding when to serve a notice of application. That begins the clock. That party must then serve and file the record and factum within 30 days. The respondent must deliver its application record and factum within 30 days after it receives the applicant’s application record and factum.
[23] It is clear from the Rules that a major goal of those Rules is to move the matter expeditiously to a hearing. With that in mind, we will turn now to the actual analysis.
[24] We will undertake the analysis of this issue using the 4-factor contextual analysis, stated above, and which all parties agree is the relevant test.
[25] First, we agree that there is some evidence that the applicant expressed an interest in appealing Pattillo J.’s order. He received the wrong information from his lawyer regarding the timing, but I am satisfied that he formed such intention. Our decision does not turn on this aspect of the test.
[26] Second, we find that the delays are unreasonable and there is no reasonable explanation for the entirety of the delay. Since at least November 4, 2016, the applicant has been aware that he missed the deadline for filing a leave to appeal.
[27] The applicant and his counsel made a strategic decision to complete all of the materials for the underlying application before proceeding with this motion; material which under the Rules they should have completed and delivered no later than July 10, 2015, which was 30 days after the Notice of the Application was delivered.
[28] We note that somewhere between October 14 to October 27, 2016 the applicant knew that he needed to retain another lawyer for the appeal. He did not speak with new counsel until November 16, 2016.
[29] Further, between October 28 and November 7, 2016 instead of reaching out to another lawyer, the applicant began drafting the appeal to materials on his own. He missed the filing deadline.
[30] On December 8, 2016, the Notice of Appeal to the Court of Appeal was served by KMLLP. The applicant stated that he understood the materials were to be filed in a timely matter, but it was almost one year later on December 13, 2017, that he learned the materials were never filed.
[31] Between December 13, 2017 and April 9, 2018, the applicant never informed the respondents of the procedural misstep when the Court of Appeal refused to accept the applicant’s materials.
[32] The applicant has no real explanation for the delay in filing until mid-March 2018.
[33] We do not accept that the delays can be laid at the feet of the applicant’s counsel and thereby absolve the applicant of any responsibility.
[34] The applicant is legally trained. He is now an accredited lawyer practicing in the area of criminal law. At several points in time he had the opportunity to make serious inquiries into the status of this matter. At least by the Oct 7, 2016 hearing before Justice Pattillo he knew that his counsel had missed a critical deadline. Indeed, he wanted LawPRO involved.
[35] It was incumbent upon him to consider his options; hire another lawyer; or read the Rules of Civil Procedure (on which he had recently written or would be writing an exam as part of his bar admission course).
[36] Third, we agree that Pattillo J. properly found that he was unable to find that the respondent had not suffered prejudice. The courts have found prejudice to the respondents in similar circumstances, such as a repeated failure of the plaintiffs to meet deadlines, having to respond and defend numerous motions, and when the respondent is a public body serving the public interest.
[37] Finally, based upon all of the circumstances, there is a likelihood that should Pattillo J.’s order be revisited, it would be upheld. The merits of the appeal are therefore not high.
[38] We therefore decline to grant an extension of time to bring the motion and dismiss applicant’s motion.
[39] In light of that finding, we need not deal with the motion to vary or set aside Pattillo J.’s order.
Summary
[40] For the reasons stated above we decline to grant leave to extend the time to bring a motion to vary or set aside the October 7, 2016 Order of Pattillo J.
[41] We need not deal with the motion to vary or set aside Justice Pattillo’s order of October 7, 2016
[42] The parties shall provide cost submissions within 10 days, which submissions shall not exceed 3 pages.
___________________________ D. EDWARDS J.
I agree
MARROCCO A.C.J.S.C.
I agree
THORBURN J.
Date of Release: September , 2018
CITATION: Singh v. Toronto Police Services Board, 2018 ONSC 5510
DIVISIONAL COURT FILE NO.: 298/15 DATE: 20180920
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C., THORBURN and D. EDWARDS JJ.
BETWEEN:
GEORGE B. SINGH (“KNIA SINGH”)
Applicant/Moving Party
– and –
TORONTO POLICE SERVICES BOARD and CHIEF OF THE TORONTO POLICE SERVICE
Respondents/Responding Party
REASONS FOR JUDGMENT
D. EDWARDS J.
Date of Release: September 20, 2018