COURT OF APPEAL FOR ONTARIO
CITATION: Laushway Law Office v. Simpson, 2013 ONCA 317
DATE: 20130510
DOCKET: M42269 (C54158)
Laskin J.A. (In Chambers)
BETWEEN
Laushway Law Office, Barry D. Laushway
Solicitors (Respondents/ Responding Parties)
and
Robert Burton Simpson
Client (Appellant/ Moving Party)
Robert Burton Simpson, acting in person
John J. Cardill, for the responding parties
Heard: April 12, 2013 by teleconference
On appeal from the judgment of Justice Robert N. Beaudoin of the Superior Court of Justice, dated July 4, 2011 and on a motion to extend the time to perfect the appeal.
ENDORSEMENT
[1] The moving party, Robert Simpson, asks for an order to further extend the time for perfecting his appeal from the judgment of Beaudoin J. dated July 4, 2011. He has already been granted two lengthy extensions, one by Lang J.A. and one by me.
A. background
[2] Simpson was injured in a car accident in 1997. Eventually he retained Barry Laushway of the Laushway Law Office (LLO) to represent him. Simpson and LLO entered into a contingency fee agreement under which LLO was to be paid legal fees equal to 30 per cent of any recovery.
[3] In November 2007, Simpson’s claim was settled at a pre-trial conference for $750,000 plus disbursements. After some adjustments to settle the claims of ODSP and Ontario Works, Simpson received the net amount of $516,473.64, and LLO received a net fee of $138,456.24. The fee has been paid, and subject to these proceedings, LLO has the funds.
[4] Simpson then challenged the enforceability of the contingency fee agreement. In November 2008, McLeod-Beliveau J. ordered a hearing of that issue. Shortly after, Barry Laushway died.
[5] Simpson did not initially proceed to a hearing. Instead, in June 2009, he brought an application for a declaration that the contingency fee agreement was void. Power J. dismissed the application on the condition that Simpson had the right to raise the enforceability of the agreement at a hearing as directed by McLeod-Beliveau J.
[6] The hearing took place before Beaudoin J. It began in February 2010, took seven days, and ended in December 2010. Mr. Laushway’s evidence went in by affidavit. Numerous other witnesses, including Simpson, gave oral testimony. Beaudoin J. delivered lengthy reasons on July 4, 2011 (see 2011 ONSC 4155), in which he found that the contingency fee agreement was enforceable. Alternatively, he would have upheld the amount claimed on a quantum meruit basis.
B. the appeal
[7] Simpson has appealed the judgment of Beaudoin J. He is representing himself. Although he is a trained lawyer, he has not practised for many years.
[8] Simpson has had all of the transcripts necessary to perfect his appeal since March 21, 2012. The parties originally agreed on a perfection date of May 22, 2012. Shortly before that date, Simpson indicated that his ill health prevented him from meeting the May 22 deadline. He sought an extension of time.
(a) The extension granted by Lang J.A.
[9] On June 20, 2012, Lang J.A. granted Simpson an extension of time to perfect his appeal until November 15, 2012. In her endorsement, she noted:
As a result of the accident and perhaps other causes Simpson has health considerations that require accommodation. He has filed material that he is able to focus for a few hours a day at intervals.
Although I have granted this lengthy extension of time, I observe that Mr. Simpson has a draft factum on the law that was prepared for him. His primary effort will be to write the facts portion of the factum in a concise manner.
(b) The extension granted by me
[10] Simpson had still not perfected his appeal by November 15. He sought a further adjournment. On December 5, 2012, I extended the time for perfecting his appeal to March 11, 2013. I added that if it was not perfected by that date then, subject to any further order of the court, it would be dismissed for delay.
(c) This motion
[11] Simpson did not comply with the March 11 deadline. Instead, he has asked for yet another lengthy extension. And he has coupled this request with requests that the court issue summons to two witnesses and that the Attorney General intervene on this appeal. The two witnesses are his former work supervisor and an “expert” on the financial impact of the accident on his ESL business. He asks for the Attorney General’s intervention on the issue of chronic pain.
C. discussion
[12] In deciding whether to extend the time for appealing, a motion judge typically takes into account the following five factors:
Whether the appellant formed an intention to appeal within the relevant period;
The length of the delay;
The appellant’s explanation for the delay;
The merits of the appeal; and
Any prejudice to the respondent.
[13] In taking into account these five factors, the overriding question is whether the justice of the case warrants an extension: see Issasi v. Rosenzweig, 2011 ONCA 112, at para. 4. For reasons that I will discuss, I am not persuaded that a further extension is warranted.
(1) Whether Simpson formed an intention to appeal within the relevant period
[14] Simpson filed his notice of appeal on time.
(2) The length of the delay
[15] The delay has been lengthy. Simpson has already received two long extensions. Indeed, nearly a year has passed since he first agreed to perfect his appeal. I accept that his health requires some accommodation, but as Lang J.A. noted last June, over 10 months ago, the law section of his factum has already been prepared. Moreover, he has had no trouble in preparing lengthy affidavits and arguments in support of his various requests for further time. I can only conclude that, for whatever reasons, he simply does not wish to perfect his appeal – he would rather keep it in a state of limbo than perfect it and go to a hearing.
(3) The explanation for the delay
[16] I am not persuaded that Simpson has satisfactorily explained his lengthy delay. I have not been provided with any medical evidence that would support a further lengthy extension. I give no weight to the request for the two summons or for the intervention of the Attorney General. These are just delaying tactics. The two witnesses could have testified before Beaudoin J. if their evidence had any relevance, and I have been given no reason why they did not do so. The issue of chronic pain is a familiar issue to the courts. It is hardly an issue that requires the intervention of the Attorney General.
(4) The merits of the appeal
[17] Simpson has not shown any merit in his proposed appeal. The reasons of Beaudoin J. are thorough and appear to be well reasoned. Although he found that the contingency fee agreement was enforceable, even if it was not enforceable, he also found that the fee received by LLO was fully justified on a quantum meruit basis. Simpson’s general and conclusory contentions at paragraph 8 of his notice of motion do not raise any arguable ground of appeal arising from Beaudoin J.’s reasons.
(5) Prejudice to the respondent
[18] LLO would not be prejudiced by a further extension in the sense that it has already received its fee. However, it is prejudiced in the sense that these proceedings continue to be outstanding and have not been brought to a timely conclusion. Finality is an important value in our justice system. When an appeal is not pursued with reasonable diligence, a respondent is justified in asking the court to dismiss the appeal for delay. Simpson has had 13 and a half months to perfect his apepal since he received the transcripts of the hearing before Beaudoin J. He has not done so despite two lengthy extensions of time. He has not pursued his appeal with reasonable diligence. My previous endorsement gave him ample warning that he risked having his appeal dismissed if he did not perfect it. The respondent’s interest in finality is a further reason why Simpson is not entitled to yet another extension.
[19] For these reasons, the justice of the case does not warrant a further extension of time to perfect the appeal. The motion is dismissed. The parties may make written submissions on the costs of the motion.
“John Laskin J.A.”