Court of Appeal for Ontario

Citation: Kirby v. Hope Place Centres, 2013 ONCA 90

Date: 20130213

Docket: M42084

Weiler J.A. (In Chambers)

BETWEEN

Dorothy Kirby

Plaintiff (Moving Party)

and

Hope Place Centres

Defendant (Responding Party)

Counsel:

Michael J. Hackl, for the moving party

Ron Craigen, for the responding party

Heard: February 8, 2013

On a motion for an extension of time to file a notice of appeal.

ENDORSEMENT

[1] This is a motion by Dorothy Kirby for an extension of time to file a notice of appeal from the dismissal of her claim for wrongful dismissal against Hope Place Centres. For the reasons that follow, I must dismiss the motion.

[2] In deciding whether to extend the time, the following factors are relevant: (1) whether the appellant formed an intention to appeal within the relevant period; (2) the length of and explanation for the delay; (3) any prejudice to the respondent; (4) the merits of the appeal; and (5) whether the justice of the case requires it: Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35 (Ont. C.A.).

[3] The factual background, of the case is important to the application of the various factors.

[4] Kirby started Hope Place, a small not-for-profit agency providing support services for persons suffering from alcoholism and drug addiction in 1989. She immediately became its Executive Director. She occupied this position until October, 2004. Kirby’s statement of claim alleges that she suffered a breakdown due to the stress of amalgamating with another corporation and harassment by a Board Member. About the same time, certain financial irregularities came to the attention of the Board of Directors and it decided to suspend Kirby with pay pending a more detailed investigation. Kirby’s doctor ordered her to go on stress-leave. She declined to attend a meeting to discuss the financial irregularities at the offices of the lawyers for Hope Place in January, 2005 on the advice of her doctor. As a result, she was placed on sick leave. Kirby alleges further harassment, abuse and invasion of her privacy by the Board. She was terminated on May 10, 2005. At that time she was 58 years old and was earning a base salary of $75,000.

[5] In November 2006 Kirby sued Hope Place for wrongful dismissal. Hope Place took the position it had terminated Kirby for cause due to the financial irregularities. For example, the Transportation Fund did not have corresponding cheques to account for where all the funds had gone. While Kirby acknowledged that she did not have documentary evidence with respect to all of the money in the Transportation Fund, she maintained that she did not benefit personally from it but had used cash to pay for such expenses as taxis for residents.

[6] Hope Place conducted discovery of Kirby and set the matter down for trial. Kirby conducted no discovery of Hope Place.

[7] After an initial pre-trial in December 2010, the trial of the action was scheduled to proceed during the sittings commencing March 28, 2011. Hope Place served Kirby with an extensive request to admit in March 2011 to which she did not respond. She states in her affidavit that she did not appreciate its significance.

[8] On March 25, 2011, Kirby’s aunt in Newfoundland, to whom she was very attached, became ill. A letter was delivered to the court advising that she was attending to her aunt. Kirby asserts that, as a result, she understood the case was adjourned to the next hearing date on November 7, 2011. Kirby did not provide counsel for Hope Place with a copy of her letter. Nor did she provide any interim contact information to the court. Kirby’s aunt passed away on March 29. Save for a brief trip home to the doctor, Kirby stayed on in Newfoundland to grieve for her aunt.

[9] The case was called for a further pre-trial on April 11, 2011 with a trial to follow immediately afterwards in the event no settlement was reached. Efforts to reach Kirby and to advise her of this were unsuccessful. At the pre-trial, Bielby J. adjourned the matter to the November 2011 sittings and ordered Kirby to do the following: (a) pay costs thrown away of $13,000 and (b) confirm in writing her list of witnesses and the gist of their evidence by June 15, 2011. The order further provided that in the event Kirby failed to comply with either provision, Hope Place was entitled to move without notice to have the action dismissed. The order provided for service by regular mail at the address given in Kirby’s pleadings.

[10] Hope Place sent Kirby a copy of the handwritten endorsement on April 13, 2011. Secondly, as ordered by the court, it sent her a copy of the order as entered on May 2, 2011.

[11] After Kirby returned from Newfoundland, her brother was very ill and he subsequently died. Kirby had either a friend or her son checking her mail and collecting it during this period. Kirby swears that she did not receive either of the two letters containing a copy of the orders. She also states that she was again suffering from the effects of post-traumatic stress disorder and did not always attend to her mail.

[12] Hope Place moved for dismissal of Kirby’s action and on August 17, 2011, Gray J. dismissed it with costs. Hope Place scheduled an appointment for the assessment of costs and served it together with a costs brief on Kirby on September 9, 2011 and again on September 13, 2011. On the return date of September 20, 2011, Kirby’s agent, Rebecca Daniels appeared and the matter was adjourned to January 5, 2012.

[13] Kirby swears that it was only when she attended on January 5, 2012 that she realized her action had been dismissed. The matter was adjourned to May 7, 2012, when it proceeded with Kirby in attendance. Costs of $221,500 were assessed with approximately 50% of the costs relating to the forensic investigation, report and trial preparation of the forensic accounting expert engaged by Hope Place.

[14] Kirby explained that her doctor advised her that she needed to concentrate on and improve her health before undertaking the additional stress of addressing the dismissal of her action.

[15] On May 28, 2012, Kirby launched an urgent motion to set aside the order of Gray J. The motion was adjourned to July 7, 2012. Murray J. dismissed the motion stating as follows:

In the circumstances of this case, given the delay in bringing the motion, the failure of the plaintiff to provide any evidence of an arguable case, and the evidence of compliance by the defendant with Bielby J.’s order regarding service of that order, and the uncontradicted evidence that the handwritten endorsement of Bielby J. was also sent to the plaintiff by regular mail, I am not prepared to set aside the order of Gray J. dismissing the plaintiff’s action based on her non-compliance with the order of Bielby J. dated April 11, 2012.

[16] Kirby expressed an intention to appeal this order. She did not, however, consult counsel until after the time for appealing had already run. She states that this was due to her unfamiliarity with the rules of civil procedure.

[17] Before me, Kirby was represented.

[18] I am satisfied that there is no prejudice to the respondent. Although Hope Place alleges that it lost contact with an important witness due to the delay, it appears that Hope Place lost contact with the witness before the case was scheduled for trial and thus it would not be further prejudiced if leave were to be granted. Hope Place also alleges that, in addition, a number of its witnesses are elderly and that their memories are fading. This is true of any case. I also note Kirby’s oral undertaking to pay outstanding costs orders, not including the $200,000 in costs relating to the dismissal of the action, within 30 days from today’s date or, in any event, prior to the hearing of any appeal. I turn now to the other factors to be considered.

[19] Counsel argued that Kirby did not receive the Bielby order despite the fact that it was mailed to her on two separate occasions. I take the endorsement of Murray J. as indirectly saying he did not accept this explanation. I have no basis on which to conclude differently.

[20] Once Kirby acknowledged she was aware her action had been dismissed in January 2012, her mental state is put forward as the underlying reason for her delay in moving to set aside the order dismissing her claim. Yet the only medical evidence in the record in this regard is a letter from her doctor in 2009 respecting an insurance claim.

[21] Counsel also sought, as part of this motion, to obtain leave to introduce fresh evidence in order to fill the gap respecting the lack of evidence of an arguable case. No supporting affidavit, setting out precisely what the fresh evidence is, was filed in a sealed envelope for the court’s consideration in the event that leave were granted.

[22] On this record, a satisfactory explanation for the delay has not been given. More importantly, apart from Kirby’s bald assertions in her evidence, evidence that Kirby has an arguable case for wrongful dismissal is simply lacking.

[23] Accordingly the motion to extend the time within which to file a notice of appeal is dismissed.

[24] Hope Place seeks its costs of the motion in the amount of $17,700. Counsel for Kirby acknowledges that the amount is not unreasonable and, indeed, his own bill of costs is higher.

[25] Kirby has not been able to have her day in court yet she owes in excess of $200,000 in costs. Hope Place is a not for profit company that had to protect its interests, and did so, in a vigorous manner. While Hope Place is entitled to its costs, much of the material filed and argument today would have been essentially the same as that before Murray J. Accordingly, I fix costs in the amount of $10,000 payable to Hope Place.

Released: Feb 13, 2013

“KMW” “K.M. Weiler J.A.”