CITATION: Alessandro v. Briggs, 2024 ONSC 2491

DIVISIONAL COURT FILE NO.: 572/23

DATE: 20240430

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: JOE ALESSANDRO, Appellant

AND:

JOSEPH GAVIN BRIGGS, Respondent

BEFORE: Lococo, Matheson and Mew JJ.

COUNSEL: Self-Represented Appellant

Rachel Hung, for the Respondent

HEARD: April 29, 2024 in Toronto (by videoconference)

ENDORSEMENT

[1] Mr. Alessandro has commenced an appeal from the decision of Callaghan J. dated September 19, 2023 (the “Decision”). The Decision dismissed his motion to set aside a decision of Abrams A.J. dated November 10, 2021, striking out his defence to a counterclaim.

[2] After the oral hearing, this Court dismissed the appeal with reasons to follow. These are those reasons.

[3] The motion giving rise to the Decision was brought under r. 37.14(1)(b) of the Rules of Civil Procedure. Under that subrule, an order may be set aside if a party fails to appear on a motion through accident, mistake or insufficient notice. As set out in the Decision, Mr. Alessandro’s explanation for failing to attend the hearing before Abrams A.J. was not accepted. Callaghan J. further concluded that Mr. Alessandro did not move forthwith after the order was made, that there was prejudice, and that the proposed defence to counterclaim had little merit. He therefore did not exercise his discretion to grant the motion to set aside.

[4] This proposed appeal gives rise to an issue of jurisdiction. Although Mr. Alessandro takes the position that the Decision is final, we conclude that it is interlocutory. The subject of the proposed appeal is the dismissal of the motion to set aside under r. 37.14, not the underlying order of Abrams A.J. The Decision did not finally dispose of Mr. Alessandro’s substantive rights. As a result, leave to appeal is required. We invited Mr. Alessandro to put forward submissions on why this Court should grant leave to appeal. Mr. Alessandro relied on the merit of his appeal.

[5] Having considered all the written and oral submissions, we decline to grant leave. This proposed appeal does not meet the requirements for leave to appeal under r. 62.02(4) of the Rules of Civil Procedure. There does not appear to be a conflicting decision and in any event we do not find it desirable to grant leave to appeal. Further, there is no good reason to doubt the correctness of the Decision. In considering the grounds for appeal, the Decision shows the application of the correct legal principles and no basis to interfere with the exercise of discretion declining the motion. The proposed appeal does not have merit. As a result, even if this Court did have jurisdiction, we would dismiss the appeal.

[6] The appeal is dismissed with costs to the respondent in the amount of $2,500, all inclusive.

[7] We note that in the oral hearing, the respondent submitted that there were difficulties serving Mr. Alessandro, and requested a residential address. After discussion, Mr. Alessandro agreed to accept service for all purposes by email at the address he has been using in his communications with this Court. The respondent agreed to serve by sending court materials by email to that address.

Lococo J.

Matheson J.

Mew J.

Date: April 30, 2024