Court of Appeal for Ontario

Citation: Raposo v. Dasilva, 2014 ONCA 263

Date: 20140403

Docket: M43231 (C57274)

Before: Cronk, Pepall and Tulloch JJ.A.

Between

Jose Manuel Raposo

Plaintiff (Moving Party)

and

Natalie Dasilva

Defendant (Responding Party)

Counsel: David S. Altshuller, for the moving party Andreas G. Seibert, for the responding party

Heard and released orally: March 31, 2014

On review of the order of a single judge (in chambers), of the Court of Appeal for Ontario, dated December 9, 2013.

ENDORSEMENT

[1] The moving party, Jose Manuel Raposo, moves to set aside the chambers order of Rosenberg J.A. of this court, dated December 9, 2013, declining to set aside the Deputy Registrar’s dismissal of this appeal for delay and to extend the time for perfecting the appeal from the June 3, 2013 order of Stinson J. of the Superior Court of Justice.

[2] Justice Rosenberg denied Mr. Raposo’s motion on the basis that there is no merit to the proposed appeal. He held that Mr. Raposo’s pleading fails to give rise to an actionable claim for mental distress damages in respect of either of the incidents complained of in the statement of claim.

[3] For the reasons expressed by him, we agree with Rosenberg J.A.’s assessment of the merits of the proposed appeal and with his conclusion that Mr. Raposo’s pleading fails to give rise to a reasonable cause of action in respect of the matters pleaded.

[4] Mr. Raposo argues that Rosenberg J.A. erred by treating the merits of the appeal as the determinative factor on the test whether to set aside the Deputy Registrar’s dismissal order and by failing to balance all the pertinent factors in determining whether to set aside that order.

[5] We disagree.

[6] In respect of the merits of the appeal – a relevant and necessary consideration – Rosenberg J.A. concluded that Mr. Raposo’s pleading fails to give rise to any reasonable cause of action. In our view, his reasons indicate that he balanced all the relevant factors and essentially concluded that, no merit to the appeal having been demonstrated, the interests of justice do not warrant the discretionary relief sought in this case.

[7] We see no error in this conclusion. Indeed, we agree with it. It is not necessary to go beyond the pleading in this case to determine this matter. Considering only Mr. Raposo’s statement of claim, no reasonable cause of action having been pleaded, there is no prospect that this proposed appeal could succeed. We note, in this regard, that the moving party was unable to point to any judicial authority in support of his contention that the tort of intentional infliction of mental suffering can be grounded on an alleged omission, rather than an intentional act or statement, by the defendant. Nor has he identified any actionable wrong by the defendant to support his claim for mental distress damages.

[8] In all these circumstances, the interests of justice tell against, not in favour of, granting discretionary relief from the Deputy Registrar’s dismissal order.

[9] For these reasons, this motion is dismissed. The respondent is entitled to her costs of this motion, fixed in the amount of $7,500, inclusive of disbursements and all applicable taxes.

“E.A. Cronk J.A.”

“S.E. Pepall J.A.”

“M. Tulloch J.A.”