MacLean v. Askew, 2021 ONSC 63
DIVISIONAL COURT FILE NO.: 714/19
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Jason MacLean, Defendant (Moving Party)
AND: Hannah Askew, Plaintiff (Responding Party)
BEFORE: Swinton, Penny, and Kristjanson JJ.
COUNSEL: Jason MacLean, self-represented Joanna Birenbaum, for the Plaintiff (Responding Party)
HEARD at Toronto: in writing, January 4, 2021
ENDORSEMENT
1Jason MacLean has brought a motion pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) seeking to set aside the order of Corbett J. dated February 3, 2020 that dismissed his motion to extend the time to file a notice of appeal. The proposed appeal arises from a judgment of Vallelunga D.J. in the Small Claims Court dated September 30, 2019, ordering Mr. MacLean to repay a loan of $20,000 to the plaintiff, Hannah Askew, plus pre-judgment interest at 2%, punitive damages of $3,000, post-judgment interest and costs.
2Ms. Askew lent Mr. MacLean, a friend and former romantic partner, $20,000 in February 2008 because he was in financial difficulty. The money was an inheritance from her grandfather. She asked for repayment in August 2010, as she needed the money for university tuition. Mr. MacLean promised to send a certified cheque. When it did not arrive, he suggested the cheque was lost in the mail, and promised to send another. No payment was made.
3In June 2015, the parties met at a conference. Mr. MacLean acknowledged the debt and promised to repay it, with interest at 2%, at $200 per month. No payment was made, and so Ms. Askew sent a formal demand letter for payment in July 2015. As no payment was made, she commenced a Small Claims Court action in November 2016. The proceeding was brought in Thunder Bay where Mr. MacLean was then living.
4A few days before the trial date scheduled for March 25, 2019, Mr. MacLean brought a motion for summary judgement, seeking to dismiss the claim on the basis that it was statute-barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. In a decision dated March 25, 2019, Young D.J. dismissed the motion.
5The trial was rescheduled to July 4, 2019. Mr. MacLean sent a letter to the Court on May 21, 2019 seeking to have the date changed. He said he was unavailable on July 4, but did not say why nor did he suggest alternative dates. Ms. Askew made submissions and offered alternative dates. Mr. MacLean’s request for an adjournment was rejected on June 3, 2019.
6Mr. MacLean did not attend the trial, sending a letter to the Court on July 3 stating that he would not attend as he was unavailable. Ms. Askew was already travelling to Thunder Bay from her home in British Columbia when he sent the letter. The trial judge struck the Statement of Defence pursuant to Rule 17.01(2)(b) of the Rules of the Small Claims Court and allowed Ms. Askew to prove her claim, resulting in the judgment described earlier. Mr. MacLean did not commence any appeal of the judgment within the time required under the Rules.
7On February 3, 2020 the motion judge dismissed Mr. McLean’s motion to extend the time to file a notice of appeal. This was because the motion judge concluded there was no merit to the proposed appeal and the justice of the case did not warrant an extension.
8A motion to set aside pursuant to s. 21(5) of the CJA must be brought within four days of the impugned order (see Rule 61.16(6)). This motion was brought out of time on February 26, 2020, and Mr. MacLean has not sought leave to extend the time to bring this motion. While he is self-represented, it should be noted that Mr. MacLean is not an unsophisticated litigant. He is a lawyer who formerly practised for several years with a major law firm, and he is now a law professor. His conduct throughout this proceeding has shown a pattern of delay. His delay in bringing the motion to set aside in a timely manner is reason enough to dismiss the motion.
9However, in any event, there is no merit to his motion to set aside. As the responding party properly points out, a motion pursuant to s. 21(5) is not a hearing de novo. The Court will not intervene unless there is an error of law or principle, or a palpable and overriding error of fact.
10The motion judge set out the correct test to be applied on a motion to extend the time for filing a notice of appeal, noting that a lack of merit in the proposed appeal can be a sufficient reason to refuse the motion (see, for example, 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5 at paras. 6-7).
11The motion judge concluded that there was no merit to the appeal for two reasons. First, he held that the case properly proceeded as it did by way of default judgment after the striking of the Statement of Defence, because Mr. MacLean did not appear for the trial on July 4, 2019, despite adequate notice of the trial date and the rejection of his earlier request for an adjournment on May 21, 2019. No explanation was given to the trial judge - nor to the motion judge of the Divisional Court - as to why Mr. MacLean was unavailable for the trial date.
12Second, the motion judge concluded that the limitations defence that Mr. MacLean relied on was bound to fail. He correctly stated, “Limitations law distinguishes between requests for payment of a loan and demands triggering a limitations period.” Given the findings of fact made by the Small Claims Court judge, which were available on the record, and the absence of any palpable and overriding error of fact by the judge, the limitations defence was bound to fail.
13We see no error in the decision of the motion judge. We agree that there is no merit to the proposed appeal, and the motion judge properly exercised his discretion not to grant an extension of time to file the notice of appeal. Accordingly, the motion to set aside fails.
14The responding party seeks costs of $3,000, an amount that is fair and reasonable in the circumstances.
15It is now almost a year since the order of the motion judge. Mr. MacLean has delayed these proceedings before the Divisional Court, and he has also failed to act with the courtesy that is to be expected of a lawyer. Despite multiple requests from Ms. Askew’s counsel that he approve a draft of the motion judge’s order, he did not do so until ordered to respond by Favreau J. in a case management conference in September, 2020.
16This is part of a pattern of concerning behaviour. The motion judge described Mr. MacLean’s conduct at the Small Claims Court as a “failure of both courtesy and evidence.” The trial judge found that “the defendant’s attempts to delay court proceedings and his absence at trial, in the face of a court order, egregious. The defendant is not a layperson, but a lawyer and a law school professor. I find his conduct with the Court indefensible” (Transcript, p. 8). Given Mr. MacLean’s uncooperative behaviour and his status as a self-represented litigant, his consent to the form and content of a draft order will be dispensed with.
17An order is to go as follows:
The motion to set aside is dismissed.
Costs to the responding party are fixed at $3,000, payable within 30 days.
Mr. MacLean’s approval of a draft order is dispensed with.
Swinton J.
Penny J.
Kristjanson J.
Date: January 5, 2021