Court Information

Court of Appeal for Ontario

Date: 2017-11-30

Docket: M48514

Before: Brown J.A. (In Chambers)

Parties

Between

Cunningham (Moving Party)

and

Hutchings (Responding Party)

Counsel

Bryan Fromstein and A. Fabio Longo, for the moving party

Mildred Cunningham Nawaz Tahir, for the responding party, Deanna Walsh

Heard: November 23, 2017

Endorsement

I. OVERVIEW

[1] Mildred Cunningham moves for an extension of time to appeal the March 8, 2017 order of Gordon J. dismissing her action (the "Dismissal Order"). The respondent, Deanna Walsh, opposes the motion.

[2] Ms. Cunningham was involved in two automobile accidents: one on June 16, 2010; the other on April 29, 2011. She commenced this action on March 30, 2012 seeking damages for injuries she alleges she suffered in those accidents.

[3] Ms. Cunningham has been less than diligent in moving her action along. The pressure of an August 2014 Status Notice prompted her undertaking examinations for discovery, which took place in early 2015. However, on January 6, 2016 Ms. Cunningham's action was dismissed administratively for delay. She had it restored in September, 2016.

[4] Before a global mediation scheduled for December, 2016 took place, Ms. Cunningham's then counsel moved to get off the record. The mediation did not occur.

[5] By order dated November 16, 2016 Reilly J. (i) ordered Ms. Cunningham's then counsel removed as solicitor of record and (ii) required Ms. Cunningham to either appoint a new lawyer "or serve a notice of intention to act in person under subrule 15.03(3)."

[6] She did neither.

[7] As a result, Ms. Walsh moved to dismiss the action due to Ms. Cunningham's failure to appoint a lawyer or file a notice of intention to act in person. Ms. Cunningham did not attend on the return of the motion. Gordon J. granted the Dismissal Order. He gave no reasons for the order.

[8] Ms. Cunningham retained new counsel.

[9] Instead of appealing the Dismissal Order, in April 2017 Ms. Cunningham moved to set aside the Dismissal Order on the basis it was made without notice to her. By order dated September 14, 2017 Flynn J. dismissed her motion, concluding the materials for the March 8, 2017 motion had been delivered to Ms. Cunningham's residence. He took the view Ms. Cunningham really was arguing the Dismissal Order was wrong and therefore her remedy was to appeal to the Court of Appeal.

[10] Ms. Cunningham has appealed the order of Flynn J. All materials needed to perfect that appeal are ready.

[11] Ms. Cunningham then brought this motion for an extension of time to file a notice of appeal from the Dismissal Order. If granted, she requests the appeals of the Dismissal Order and the order of Flynn J. proceed together.

II. ANALYSIS

[12] The applicable principles are those set out by Gillese J.A. at para. 26 of Laski v. Laski, 2016 ONCA 337. I examine them in turn below.

A. An intention to appeal within the relevant time period

[13] There is no doubt Ms. Cunningham formed the intention to challenge the Dismissal Order, but it is far from clear she formed an intention to appeal the order within the relevant time period. She did not file an affidavit on this motion, so there is no direct evidence of her intention.

[14] Her conduct, however, indicates that within the prescribed appeal period she elected to move to set aside the Dismissal Order. That is not the same as forming an intention to appeal.

[15] A motion to set aside or vary an order under rule 37.14 is not a "free kick at the can" which, if it fails, then permits a party to launch an appeal of the order. Such an application of the Rules of Civil Procedure would be antithetical to their objective in securing timely and cost-effective adjudications of cases on their merits.

[16] Here, Ms. Cunningham decided to advance technical arguments on a motion to vary instead of taking the direct route and appealing the Dismissal Order on its merits. Accordingly, this factor weighs against her.

B. The length of and explanation for the delay in filing

[17] The delay of eight months before seeking this extension of time to appeal is not inordinately long. But, as mentioned, Ms. Cunningham's explanation of first bringing a motion to set aside rather than appealing the Dismissal Order hints more at tactical maneuvering than dealing with the merits of the order head-on. This factor is at best neutral.

C. Prejudice to the responding party

[18] The responding party cannot point to any actual prejudice in the sense of lost evidence or diminished memory of witnesses. Yet, the responding party is faced with a plaintiff who seems unwilling to proceed with due dispatch and such delay brings with it its own prejudice. This factor is neutral.

D. Merits of the proposed appeal

[19] On a motion to extend the time to appeal, the court considers whether the proposed appeal "has so little merit that the court can reasonably deny the moving party his or her important right of appeal": Laski, at para. 37.

[20] Gordon J. did not give reasons for granting the Dismissal Order. Accordingly, I am left to assume that the reason he dismissed Ms. Cunningham's action was because she failed to appoint a new lawyer or file a notice of intention to act in person as required by the order of Reilly J.

[21] Why the dismissal of her action was a proportionate response to that failure cannot be ascertained in the absence of reasons. A party is not obligated to appoint a lawyer to represent her in a civil action; she is entitled to represent herself: Rule 15.01(3). And one would think that if a party does not appoint a new lawyer, that signifies the party intends to represent herself.

[22] The notice of intention to act in person seems designed to ensure the party's address for service and telephone number are known to the court and to the other parties: Rule 15.03(3). Here, the responding party knew where Ms. Cunningham resided; she delivered the motion materials seeking the action's dismissal to Ms. Cunningham's residence.

[23] Consequently, it is unclear what would have led Gordon J. to adopt the most draconian remedy in the circumstances of this case. It follows Ms. Cunningham's proposed appeal of the Dismissal Order raises a very arguable issue.

[24] This factor weighs strongly in Ms. Cunningham's favour.

The holistic view: the justice of the case

[25] Stepping back to take a holistic view of the circumstances, I am persuaded the justice of the case favours granting Ms. Cunningham an extension of time to appeal. I am not impressed by her lack of diligence in pursuing her claim and she may well have hit the bottom of the well of judicial indulgence. But her proposed appeal is arguable, and I see no real prejudice to the responding party.

III. DISPOSITION

[26] I therefore grant Ms. Cunningham's request for an extension of time to appeal, but on terms. First, she must perfect this appeal no later than December 15, 2017. Second, I direct this appeal be heard with her appeal from the order of Flynn J., which I order be perfected no later than December 15, 2017. Finally, although Ms. Cunningham has succeeded on this motion, I make no order as to costs. Had Ms. Cunningham taken the direct route of appealing the Dismissal Order instead of taking a detour through her motion to vary, this motion would have been unnecessary.

[27] One final comment. Assuming Ms. Cunningham perfects both appeals by December 15, 2017, it will take several months before they are heard. That would provide all parties involved in the Cunningham-related actions with the opportunity to conduct a global mediation session and get down to the business of addressing the merits of her disputes.

"David Brown J.A."