Court of Appeal for Ontario

Citation: Roth v. Bourolias, 2011 ONCA 760

Date: 20111202

Docket: C53867

Before: Feldman, Sharpe and Epstein JJ.A.

Between

Judy Roth

Applicant (Appellant)

and

Peter Bourolias

Respondent (Respondent)

Counsel:

Judy Roth, in person

Stephen Jackson, for the respondent

Heard and released orally: November 25, 2011

On appeal from the order of Justice George Strathy of the Superior Court of Justice dated May 17, 2011.

ENDORSEMENT

[1] Justice Strathy addressed the motion based on the governing case law set out in Scaini v. Prochnicki, [2007] ONCA 63, which confirmed the factors from Reid v. Dow Corning Corp., (2001), 11 C.P.C. (5th) 80. He considered each of the four factors: (1) explanation for the ten-and-one- half year delay; (2) inadvertence in missing the deadline; (3) bringing the motion promptly after discovering the dismissal; and (4) prejudice to the defendant. He found in favour of the respondent on each of the factors. He found that there was no adequate explanation for the delay and that the appellant did not show diligence in prosecuting the action.

[2] Finally, Justice Strathy concluded that the passage of time of seven-and-one-half years since the dismissal of the action, was just too long to revive the action.

[3] We see no error in his analysis. The appeal is therefore dismissed.

[4] Costs in the amount of $1,000 inclusive of disbursements and H.S.T.

Signed: “K. Feldman J.A.”

“Robert Sharpe J.A.:

“G.J. Epstein J.A.”