Court File and Parties
DIVISIONAL COURT FILE NO.: 21/208
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Rose Donatelli-Venneri, Michael Venneri, Professional Counselling Services and Comprehensive Health Care Inc., Moving Parties/Appellants
AND:
Stern Landesman Clark LLP, Respondent
BEFORE: Nishikawa J.
COUNSEL: Rose Donatelli-Venneri and Michael Venneri, in person
Paul Stern, in person
HEARD at Toronto: May 13, 2022, by videoconference and teleconference
ENDORSEMENT
Overview
1The Moving Parties, Rose Donatelli-Venneri and Michael Venneri, bring a motion for an extension of time to appeal the decision of Myers J. dated November 30, 2020 (the “Order”), as amended by the Supplementary Endorsement of Myers J. dated February 17, 2021, and to seek leave to appeal the cost endorsement dated December 21, 2020 (the “Costs Order”). The Order dismissed the Moving Parties’ appeal of a decision of an Assessment Officer.
2In April 2017, the Moving Parties retained the Respondent lawyer, Paul Stern, to bring a motion to set aside a default judgment which had been granted against them in 2013. The motion was unsuccessful. The Moving Parties did not appeal the decision. The outstanding legal fees were $41,541.79.
3The assessment process began in March 2018. The Assessment Officer rendered a decision on November 22, 2019, upholding the Respondent’s accounts. The Moving Parties appealed, and the appeal was heard on November 27, 2020. Myers J. dismissed the appeal and ordered costs to the Respondent.
4At the hearing before me, the Moving Parties participated in the videoconference hearing by telephone. They stated their preference for an in-person hearing because of the difficulty in communicating their position by telephone. Ms. Donatelli-Venneri had submitted a written statement, which she had provided to the Respondent the day before. The Respondent did not object to the court considering the written statement and assisted the Moving Parties by uploading the document to CaseLines. I proceeded with the hearing.
Analysis
5In granting an extension of time, the court considers the following four factors identified by Swinton J. in Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 554:
Whether the moving party formed an intention to appeal within relevant period;
The length of the delay and the explanation for it;
The prejudice to the responding party; and
The merits of the appeal.
6The evidence is unclear as to when the Moving Parties formed an intention to appeal. The Moving Parties advise that they intended to appeal some time in December 2020 but that in early December, Ms. Donatelli-Venneri became severely ill.
7The notice of appeal is dated February 23, 2021. The first communication of the Moving Parties’ intent to appeal is contained in two email messages dated February 16, 2021, sent on their behalf by MacKenzie Barristers. One of the email messages disputed certain findings made by Myers J., which led to the Supplementary Endorsement dated February 17, 2021. The other email message requested a transcript of the hearing before Myers J. which, based on the endorsement, contained the oral reasons for denying the Moving Parties’ adjournment request. The Moving Parties were later advised, however, that no recording or transcript was available.
8The Moving Parties submit that the delay was caused by Ms. Donatelli-Venneri’s illness and because Dr. Venneri, who is her son and a chiropractor, is her “sole health care provider” and “sole caregiver.” The Moving Parties submit that Dr. Venneri was preoccupied with caring for her. In addition, the Moving Parties state that as a result of the pandemic, Dr. Venneri was also busy attending to patients.
9A note from Dr. Ragad Rawoof dated May 4, 2021 states that Ms. Donatelli-Venneri has been undergoing medical assessments for the past several months to diagnose and determine treatments for various and potentially “serious medical issues”. The letter says only that the “diagnostic assessments have uncovered several areas of concern and treatments are ongoing.” It does not identify any specific diagnosis or treatment.
10Dr. Venneri further stated that they were confused about the appeal period because they intended to request amendments to the original endorsement, and that it took time to find a lawyer, especially during the Christmas holidays, and for the lawyer to review the file.
11While the medical evidence is vague in terms of the nature of Ms. Donatelli-Venneri’s illness and when she began to experience it, I accept that Ms. Donatelli-Venneri fell ill in December 2020 and that this impeded her ability to pursue an appeal. Ms. Donatelli-Venneri’s affidavit states that she has a disability as a result of a previous brain injury. I also note that the COVID-19 pandemic, which was in full-swing in December 2020, caused significant disruption to many. Moreover, I am prepared to give the Moving Parties the benefit of the doubt regarding their confusion about the appeal period, because they did seek the assistance of counsel to have the endorsement amended and to obtain the transcript.
12In terms of prejudice, the Respondent relies on Catalyst Group, at para. 30 to submit that he is prejudiced because the Moving Parties continue to make serious allegations of misconduct against him. The Respondent further submits that the Moving Parties have drawn the matter out, seeking multiple adjournments of the assessment hearing and appeal. In Catalyst Group, the motion to extend time was in relation to a contempt motion alleging that the defendant breached a court order. In this case, the issue is whether the Respondent’s accounts should be upheld. While allegations of misconduct and ethical breaches should not lightly be made, Mr. Stern has not identified a prejudice beyond the allegations of misconduct.
13In respect of the fourth factor, the merits of the appeal, the Moving Parties raise the following grounds in their Notice of Appeal:
(a) The appeal judge erred in rejecting the Appellants’ request for an adjournment on the basis that they faced challenge in using unfamiliar videoconference technology and so that an in-person hearing could be held;
(b) The appeal judge made a palpable and overriding error in affirming the assessment officer’s acceptance of the respondent’s testimony and rejection of the Appellants’ testimony;
(c) The appeal judge made a palpable and overriding error in affirming the assessment officer’s finding that the Appellants had the ability to pay the amount assessed, which finding was based on a misapprehension of the evidence;
(d) The appeal judge erred in finding that there was no unfairness in the process of the assessment despite the assessment officer excluding Ms. Donatelli-Venneri from the hearing; and
(e) The appeal judge erred in principle by award costs to the respondent on a substantial indemnity basis.
14In my view, the merits of the appeal are not strong. The Moving Parties face an uphill battle in demonstrating any errors by the appeal judge, who has significant discretion over the conduct of a hearing. Moreover, on appeal, an Assessment Officer’s findings are entitled to considerable deference. It is evident from the Moving Parties’ submissions in writing and at the hearing that the decision to which they object is the dismissal of their motion to set aside default judgment. For example, at the hearing, Ms. Donatelli-Venneri made submissions about the importance of their appeal to “anyone who drives a car in Ontario.” Needless to say, the dismissal of the motion to set aside default judgment is not the subject of this appeal.
15The overriding consideration in determining whether to grant an extension is the justice of the case requires an extension: National Telecommunications, at para. 17.
16The notice of appeal was served more than 70 days after the Order and more than 50 days after Costs Order. Under the circumstances, while the delay exceeds the timeline in which an appeal must be brought, the delay is not excessive. Moreover, the Notice of Appeal was served and filed shortly after the release of the Supplementary Endorsement.
17In this case, notwithstanding that the Moving Parties’ evidence on the four factors is weak, I find that it is in the interests of justice that an extension be granted. The Moving Parties are self-represented and have suffered health setbacks during a global pandemic. There was some confusion about the appeal period and the oral reasons for the adjournment. There was not a significant delay before the Moving Parties sought legal advice and took steps to sort through the confusion. Taking into consideration all of the circumstances, and given that the delay is not excessive, I find that it is in the interests of justice that an extension be granted.
Conclusion
18The motion for an extension of time is granted. The Moving Parties seek $1,000 in costs of the motion. The Respondent submitted a costs outline for total costs of $3,000. I note that the Moving Parties are self-represented and the Respondent is representing his law firm. Costs of the motion are reserved to the panel hearing the appeal.
19In order to ensure that the appeal and the motion for leave to appeal the Costs Order proceed in a timely manner, the following timeline is ordered:
(a) By July 15, 2022, the Moving Parties shall:
(i) Perfect their appeal by serving and filing all materials in support of the appeal;
(ii) Serve and file their materials on the motion for leave to appeal the Costs Order;
(b) By August 15, the Respondent shall file their responding materials on the appeal and on the motion for leave to appeal; and
(c) By August 31, 2022, the Moving Parties shall file their reply materials, if any, on the motion for leave to appeal.
“Nishikawa J.”
Date: June 15, 2022