Court of Appeal for Ontario

CITATION: Kandolo-Kwabanza v. College of Physicians and Surgeons of Ontario, 2014 ONCA 222

DATE: 20140325

DOCKET: M42255 (C56277)

Epstein, Pepall and van Rensburg JJ.A.

BETWEEN

Pedro Kandolo-Kwabanza

Appellant (Applicant)

and

The College of Physicians and Surgeons of Ontario

Respondent (Responding Party)

Pedro Kandolo-Kwabanza, appearing in person

Michelle Gibbs, for the responding party

Heard and released orally: March 21, 2014

On a motion to review the order of Justice Eileen Gillese of this court dated February 27, 2013 from an order of the Registrar dated February 8, 2013 dismissing for delay the appeal of the order of Justice Andra Pollak of the Superior Court of Justice, dated October 15, 2012.

ENDORSEMENT

[1] In a statement of claim issued March 1, 2012 the applicant claims $18,000,000 in damages against the responding party, the College of Physicians and Surgeons of Ontario (the “College”), arising out of its investigation and disposition of his complaint against his former physician. The College brought a motion to strike the claim on the basis, among other things, that it disclosed no reasonable cause of action.

[2] On October 15, 2012, Pollak J. struck out the claim without leave to amend. The applicant appealed but did not perfect his appeal. The Registrar of this court dismissed the appeal for delay on February 8, 2013. The applicant moved to set aside the dismissal order and extend the time to perfect. By order dated February 27, 2013, Gillese J.A. dismissed his motion. The applicant moved to have the decision of Gillese J.A. reviewed. The motion for review was dismissed for delay on July 10, 2013. The applicant obtained an order re-instating his motion for review on terms including that it proceed this week, on a peremptory basis.

[3] In her detailed endorsement, Gillese J.A. applied the well-known factors a court should consider in deciding whether to set aside a Registrar’s order for failure to perfect an appeal; namely, whether the applicant had an intention to perfect within the time allotted, the length of the delay, any explanation for the delay, any prejudice to the responding party caused by the delay, and the justice of the case.

[4] This last factor requires a consideration of the merits of the appeal. In this regard, Gillese J.A. held, correctly in our view, that the appeal has no merit.

[5] There is no reason to interfere with the order of Gillese J.A.

[6] The application to review is therefore dismissed. The responding party is entitled to costs fixed in the amount of $5000 inclusive of HST and disbursements. There will also be an order dispensing with the need for approval of the order of this court as to form and content.

“Gloria Epstein J.A.”

“S.E. Pepall J.A.”

“K. van Rensburg J.A.”