CITATION: Curtis v. Pinto, 2018 ONSC 5569
DIVISIONAL COURT FILE NO.: DC-110-18 DATE: 20180924
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
C. Horkins, Thorburn, and D.L. Edwards
BETWEEN:
GARY CURTIS Plaintiff/Appellant
– and –
ANDREW PINTO AND PINTO WRAY JAMES LLP Defendants/Respondents
Gary Curtis, acting in person Tim Gleason and Adrienne Lei, for the Defendants/Respondents
HEARD at Toronto: September 19, 2018
C. HORKINS J.
[1] The appellant brings a motion to set aside the order of Associate Chief Justice Marrocco (the motion judge) dated June 13, 2018 (the Order). The Order dismissed the appellant’s motion seeking leave to appeal three interlocutory orders of Justice Dow.
[2] I start with a brief review of the background.
[3] The appellant was formerly employed at the Bank of Nova Scotia (the “bank”) as a Mortgage Development Manager. In February 2012, the bank conducted an unrelated investigation and identified several fraudulent documents used to support mortgages submitted by the appellant. In April 2012, the appellant was suspended pending the conclusion of the investigation. The appellant subsequently resigned from his employment.
[4] The appellant filed two complaints against the bank. First, in June 2012, the appellant filed a constructive dismissal complaint under the Canada Labour Code, R.S.C., 1985, c. L-2 and an adjudicator was appointed to hear the merits of the complaint. Second, in April 2013, the appellant filed a complaint under the Canadian Human Rights Code alleging discrimination based on race. The Canada Human Rights Commission stayed the complaint pending the adjudicator's determination regarding the constructive dismissal.
[5] The appellant retained the respondent, Andrew Pinto, to act for him in the Canada Labour Code proceeding which took place over two days in November 2013. During the hearing, the appellant unsuccessfully tried terminate the respondent. At the end of the hearing, the appellant was not satisfied his case had been heard and requested that the respondent contact the adjudicator to re-open the hearing. The respondent did not comply with the request and the appellant subsequently fired the respondent. The appellant hired new counsel to supplement the issue of re-opening the hearing on the grounds that he had not been adequately represented by the respondent.
[6] In a decision dated July 11, 2014, the adjudicator found there was no basis for the allegation of ineffective representation against the respondent. Additionally, the adjudicator was not satisfied, based upon the evidence, that the appellant was constructively dismissed. The appellant then moved unsuccessfully before the Federal Court for a judicial review of the adjudicator's decision.
[7] The appellant commenced two actions in the Superior Court: the appellant sued the respondents for negligence and sued the bank for defamation.
[8] Since the commencement of the two actions in the Superior Court numerous motions have been heard. This motion involves the three decisions of Justice Dow.
[9] Beginning in October 2015, Justice Dow issued three interlocutory orders with respect to the appellant's negligence and defamation proceedings. First, that the negligence and defamation actions be tried together; second, an order that there will be common discoveries in the two actions; third an order refusing to recuse himself from a motion brought by the respondents to have the action dismissed on the basis that it was an abuse of process.
[10] The appellant delivered a notice of motion on February 26, 2018 requesting leave to appeal the three interlocutory orders. This motion for leave to appeal was administratively dismissed by the Registrar on May 15, 2018, because the appellant did not file the materials in accordance with rule 61.13(8)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[11] On May 24, 2018, the appellant brought a motion for an order setting aside the Registrar's order and seeking an extension of time to perfect his motion for leave to appeal. The motion judge dismissed the appellant’s motion and ordered him to pay the respondents costs of $2,000.
[12] The motion judge explained that one of the criteria to be applied in assessing an application for leave to appeal is the merit of the claim. He explained that judges routinely make orders that actions be tried together and that there be a common discovery. In evaluating the orders, the motion judge found that the two actions stem from the same event, the termination of the appellant’s employment with the bank and the respondent’s ability to effectively represent the appellant. As a result, the motion judge concluded that there was no merit to the appellant’s application to appeal the orders and dismissed the appellant’s request for leave.
[13] In addition, the motion judge noted the discretionary nature of a recusal order. Justice Dow’s refusal to recuse himself was an exercise of his discretion and the appellant did not establish that this was a matter of importance beyond the interests of the parties.
[14] Pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 this panel may “set aside or vary the decision of a judge who hears and determines a motion”. The standard of review is correctness on a question of law. On a question of fact or mixed fact and law, the standard of review is palpable and overriding error.
[15] The appellant states that the motion judge’s brief history of his litigation contained errors and the motion judge applied the wrong test in deciding if leave should be granted. I disagree.
[16] The motion judge provided an overview of the appellant’s history of litigation that led to the orders of Dow J. that the appellant was seeking leave to appeal. The history provided context and the orders in question were correctly described. The alleged factual errors are minor and of no consequence to this motion.
[17] The appellant did not perfect his motion for leave to appeal on time. As a result, the motion was dismissed by the Registrar. The sole issue before the motion judge was whether or not the administrative dismissal by the Registrar of the motion for leave to appeal, should be set aside.
[18] The motion judge correctly stated that "one of the criteria to be applied in assessing an application of this nature is the merit of” the motion for leave to appeal. In Sickinger v. Sickinger, 2017 ONCA 760 at paras. 13-14 the Court of Appeal confirmed that this is the overriding consideration:
13 The overriding consideration on a motion to set aside an order dismissing an appeal is the justice of the case, which entails a consideration of the merits of the appeal: Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731, at para. 8. In addition, factors analogous to those typically considered on a motion to extend the time to appeal inform a request to set aside the administrative dismissal of an appeal: (i) the explanation for not perfecting the appeal within the time stipulated by the rules; (ii) the length of and explanation for the delay in moving to set aside the administrative dismissal; and (iii) prejudice to the respondent.
14 More justification must be shown by a party moving to aside an administrative dismissal of an appeal than would have been required had the party earlier availed itself of its rights to move for an extension of time to perfect the appeal: Langer v. Yorkton Securities Inc. (1986), 1986 2612 (ON CA), 57 O.R. (2d) 555 (C.A.), at para. 14.
[19] Lack of merit alone can be a sufficient basis to deny an extension of time, particularly when the moving party seeks an extension of time on a notice of motion for leave, rather than an extension of time to pursue an appeal as of right (Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 at 15-16.)
[20] The motion judge considered the merits of the appellant’s motion for leave to appeal and noted the following:
- There is a final and binding order determining the crucial issues in the appellant’s action against the respondents: that the appellant resigned his employment, and was not dismissed; and that his allegations that the respondents’ incompetence caused this result were without merit.
- The appellant sought to have the above findings quashed, and was unsuccessful in the Federal Court.
- The decisions of Justice Dow, from which leave was sought, were discretionary and interlocutory.
- The appellant did not establish any issue of importance beyond the parties.
[21] The appellant argues that the motion judge applied the wrong test. He states that the test does not include a consideration of the merits of his claim. The appellant relies on Scaini v Prochnicki, 2007 ONCA 63. This case sets out the test for setting aside an order of the registrar dismissing an action pursuant to Rule 48.13(3) and 77.08 of the Rules of Civil Procedure. Both rules govern situations where a party fails to set down an action within the prescribed time, involving decisions at a non-appellate level.
[22] A different test applies when a party seeks to set aside an administrative dismissal order at the appellate level. This test requires a consideration of the merits of the claim and the motion judge correctly applied this test as set out in Sickinger.
[23] In conclusion, there is no basis for setting aside the order of the motion judge and the appellant’s motion is dismissed.
[24] The respondents seek costs of this motion on a partial indemnity basis of $1,760.50 all inclusive. The respondents were successful and are entitled to costs. The amount requested is fair and reasonable and shall be paid by the appellant.
[25] Counsel for the bank in action in Court File No. CV-14-502628 was in attendance at the hearing of this motion. He requested that we issue an order directing the appellant to provide the bank with notice of any further motions that he brings in this action against the respondents.
[26] The appellant has refused to provide the bank with notice of his motions. The bank is an interested party in this action against the respondents. This is because this action is being tried together with the appellant’s action against the bank and the parties in each action are entitled to attend and participate in the examinations for discovery of the other parties. In these circumstances, the appellant must provide the bank with notice of any motion he brings in this action.
[27] Similarly, if the appellant brings a motion in Court File No. CV-14-502628, the respondents in this action are entitled to notice.
CONCLUSION
[28] I make the following orders:
(i) The appellant’s motion is dismissed.
(ii) The appellant shall pay the respondents costs fixed at $1,760.50 all inclusive.
(iii) If the appellant brings any further motions in this action, he shall serve the respondent, Bank of Nova Scotia in Court File No. CV-14-502628.
___________________________ C. Horkins J.
Thorburn J.
D.L. Edwards J.
Released: September 24, 2018
CITATION: Curtis v. Pinto, 2018 ONSC 5569
DIVISIONAL COURT FILE NO.: DC-110-18 DATE: 20180924
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
C. Horkins, Thorburn, and D.L. Edwards
BETWEEN:
GARY CURTIS Plaintiff/Appellant
– and –
ANDREW PINTO AND PINTO WRAY JAMES LLP Defendants/Respondents
REASONS FOR JUDGMENT
C. Horkins J.
Released: September 24, 2018