Court File and Parties

CITATION: Paulsson v. The Board of Trustees of and for the University of Illinois and the American Association for the Advancement of Slavic Studies, 2018 ONSC 901

COURT FILE NO.: 728/17

DATE: 2018-02-07

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Gunnar S. Paulsson, Plaintiff/Moving Party AND: The Board of Trustees of and for the University of Illinois and the American Association for the Advancement of Slavic Studies, Defendants/Responding Parties

BEFORE: H. Sachs J.

COUNSEL: Gunnar S. Paulsson on his own behalf Gordon McGuire, Counsel, for the Defendants/Responding Parties

HEARD at Toronto: January 25, 2018

Endorsement

[1] The Plaintiff commenced an action in 2006 in which he alleged that he was defamed in a book review that was published in 2004. The action was tried before a jury over a nine-day period and on February 18, 2015 the jury found that the words complained of in the book review were not defamatory of the Plaintiff. The jury assessed the Plaintiff’s damages, irrespective of liability at $6000 - $1000 in punitive damages as against the author of the review and $5000 in punitive damages as against the Association.

[2] On February 18, 2015 a judgment was rendered dismissing the action as against the Association and the University. On March 27, 2015 an order was made awarding the Association and the University over $200,000 in costs. On the same date a default judgment was rendered against the author of the review who had not defended the action.

[3] On March 6, 2017 the Plaintiff served a Notice of Motion in the Court of Appeal seeking to extend the time to appeal the judgment dismissing his action, the costs order and the default judgment. The Court of Appeal dismissed the appeal with respect to the default judgment and found that it had no jurisdiction with respect to the dismissal judgment and costs.

[4] The Plaintiff now moves before me seeking an extension of time to file his Notice of Appeal in the Divisional Court with respect to the dismissal judgment and costs.

[5] The Court of Appeal stated the following in Enbridge Gas Distribution Inv. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15:

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 consideration, including:

(a) Whether the moving party formed a bona fide intention to appeal within the relevant time period;

(b) The length of, and explanation for, the delay in filing;

(c) Any prejudice to the responding parties, caused, perpetrated or exacerbated by the delay; and

(d) The merits of the proposed appeal.

[6] The Plaintiff deposed in his affidavit that he announced his intention to appeal in the courtroom as soon as the jury’s verdict was read out. In April of 2015 he wrote to the Defendants’ counsel advising that he did intend to appeal. In March of 2016 he consulted a lawyer about filing his Notice of Appeal and a year later he moved to extend the time. During this period he paid for and ordered the transcripts for the trial. On the basis of this evidence I am prepared to find that the Plaintiff did form a bona fide intention to appeal within the relevant time period.

[7] In spite of this intention the Plaintiff did not take any steps to file his Notice of Appeal until almost two years after the jury had rendered its verdict and an award of costs had been made against him. His explanation for this delay is that neither his health nor his finances permitted him to proceed with the appeal. His loss at trial was traumatic for him and exacerbated his major depressive disorder and his attention deficit disorder. In support of his motion the Plaintiff filed a letter from his psychiatrist confirming that he has been receiving treatment for his disorders since March of 2014 and that these disorders were exacerbated after he lost at trial. The Plaintiff also deposed that he did not feel that he could proceed with the appeal until he had the transcripts from the trial and it took him a while to accumulate the money necessary to pay for those transcripts.

[8] I do not find that the Plaintiff’s explanation for his almost two-year delay in filing a Notice of Appeal to be satisfactory or persuasive. Several weeks following the jury verdict he prepared and delivered a motion seeking a mistrial, attended a case conference to speak to the trial judge’s jurisdiction to hear his motion and prepared written submissions on the jurisdictional issue. All of these steps were more complicated than filing a Notice of Appeal. On April 13, 2015 he wrote to the Defendants’ lawyers saying, “I do now feel sufficiently recovered to proceed” and would serve materials later that week. I do not accept that it was necessary for the Plaintiff to have the transcripts of the trial before filing his Notice of Appeal. He was present throughout the trial. Further, the Plaintiff deposed that he paid a lawyer to draft a Notice of Appeal in March of 2016. Yet he took another year to bring his motion to file a Notice of Appeal.

[9] On the issue of prejudice the Defendants submit that the one of the important principles that underlies our system of justice is the principle of finality. Finality enables parties to move on after lawsuits, knowing that the litigation is over. In this case, they submit, that principle would be undermined if the Plaintiff were to be allowed to proceed with his appeal.

[10] With respect to the merits of the appeal, the threshold for succeeding on an appeal of a jury verdict is very high. The Court of Appeal noted the following in Chandra v. Canadian Broadcasting Corp., 2016 ONCA 448 at para. 46:

The moving party seeks to appeal the verdict of a jury. The law is well-settled and has been for decades going back to the decision of the Supreme Court of Canada in McCannell v. McLean, [1937] S.C.R. 341, where Chief Justice Duff noted, at p. 343:

[T]he verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it.

[11] I am satisfied that the Plaintiff could not meet this threshold. I also reject his submission that the judge’s charge to the jury would cause the verdict to be set aside on appeal. Read as a whole and in context, the charge does not disclose an error that resulted in “a substantial wrong or miscarriage of justice.” In Chandra at para. 71 the Court of Appeal stated the following:

Before I begin to address those grounds, I emphasize again the high threshold required to set aside a jury verdict. Appellate review of a jury charge takes a functional approach whose goal is to ensure that juries are properly, not perfectly, instructed. A new trial is not be ordered unless the error results in a “substantial wrong or miscarriage of justice.”

[12] Having reviewed all of the relevant factors, I find that the justice of the case does not require that an extension be given. For these reason the motion to extend is dismissed. The Defendants requested their costs of the motion fixed in the amount of $3019.80, all inclusive. This amount is reasonable and it is so ordered.

H. Sachs J.

Date: February 7, 2018