Court of Appeal for Ontario

Citation: Thompson v. York University, 2014 ONCA 235 Date: 2014-03-26 Docket: M43038 (C57328)

Before: Epstein, Pepall and van Rensburg JJ.A.

Between:

Mark Thompson Plaintiff/Appellant (Applicant)

and

York University Board of Governors Defendant/Respondent (Responding Party)

Counsel: Mark Thompson, appearing in person Sarah Jones, for the responding party

Heard and released orally: March 20, 2014

On a motion to review the order of Justice Jean MacFarland of this court dated October 22, 2013 from an order of the Registrar dated September 5, 2013 dismissing for delay the appeal of the order of Justice J. Patrick Moore of the Superior Court of Justice, dated June 21, 2013.

ENDORSEMENT

[1] On January 7, 2011, the applicant commenced this proceeding claiming relief against the responding party, York University Board of Governors (the "University") relating to events that took place at the University's Schulich School of Business. The University brought a motion to strike the claim on a number of grounds, including that it disclosed no reasonable cause of action.

[2] On May 15, 2013, Chiappetta J. dismissed the action. The applicant without notice, moved to have the order of Chiappetta J. set aside. On June 21, 2013, Moore J. dismissed that motion. On September 5, 2013, the applicant's appeal from the order of Moore J. was dismissed for delay by the Registrar of this court. The applicant moved to have the Registrar's order set aside. By order dated October 22, 2013, MacFarland J.A. dismissed the motion.

[3] The applicant now seeks a review of the order of MacFarland J.A.

[4] In her detailed endorsement, MacFarland J.A. reviewed the history of the matter and then turned to 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.

[5] This last factor requires a consideration of the merits of the appeal. In this regard, MacFarland J.A. held, correctly in our view, that there was no merit in the appeal given that, in these circumstances, Moore J. did not have jurisdiction to grant the order sought. The applicant's challenge of the order of Chiappetta J. was in substance an appeal, not an ex parte motion to set aside the order brought before another judge of Superior Court. There is no reason to interfere with the order of MacFarland J.A.

[6] The application to review is therefore dismissed. The responding party is entitled to costs fixed in the amount of $1900 inclusive of HST and disbursements.

"Gloria Epstein J.A."

"S.E. Pepall J.A."

"K. van Rensburg J.A."