Court of Appeal for Ontario

Date: 2018-02-21

Docket: M48351 (C61460)

Panel: Sharpe, Watt and Benotto JJ.A.

Between

Ali Zaki Plaintiff (Appellant)

and

The Corporation of the City of Guelph and the Guelph Transit Commission and Nushette Anderson, vehicle operator and the Guarantee Company of North America and Cunningham Lindsey Canada and Robert ("Rob") Seal, president CEO of Cunningham Lindsey Canada and Michael ("Mike") Mixer, Employee of Cunningham Lindsey Canada

Defendants/Respondents

Counsel

Ali Zaki, self-represented

Kayla Kwinter, for the respondents

Heard: February 15, 2018

Motion to Review Single Judge's Order

Reasons for Decision

[1] Mr. Zaki moves to set aside the order of Epstein J.A. dismissing his motion to set aside the Registrar's order dismissing his appeal on account of delay in perfecting it.

[2] The underlying order at issue on the appeal struck out portions of the appellant's statement of claim and dismissed his claim against the respondents to this motion. He took no steps to appeal that order for four months when he sought an extension of time to serve and file a notice of appeal. The respondents consented to a six-month extension. The appellant then sought and obtained a further extension to perfect his appeal. He failed to perfect the appeal in a timely fashion and the Registrar dismissed his appeal for delay on October 5, 2016. The appellant took no steps to set aside the Registrar's order for eight months. He first announced his intention to move against the Registrar's order at a case conference at which an order was made staying his action pending the completion of certain steps, including the payment of outstanding costs owing to the respondents. The case conference order provided that a successful appeal from the order to dismiss the action against the respondents would satisfy that condition.

[3] The appellant argues that Epstein J.A. erred by failing to recognize that his delay could be explained by certain medical evidence, that she failed to respect the prior decisions of Hourigan J.A. stating that the appeal was not frivolous and vexatious, and that she failed to properly apply the test for setting aside the Registrar's order, particularly with respect to prejudice. The appellant also complains that the respondent's materials on this motion were not served and filed in a timely fashion.

[4] We are not persuaded that Epstein J.A. erred in refusing to set aside the Registrar's order, particularly in light of the appellant's lengthy delay in moving to set aside that order.

[5] We have reviewed the letters from the appellant's primary care physician. While those letters indicate that the appellant has suffered from mental illness, we are not persuaded that his medical condition fully or adequately explains his delay in moving this matter forward. As noted by Epstein J.A., the appellant is an intelligent and articulate individual, capable of navigating the court system. In our view, the inevitable inference to be drawn from the record before us is that the motion to set aside the Registrar's order was prompted by the case conference order requiring the appellant to pay outstanding costs orders as a condition of the action proceeding. The appellant attempted to overcome that obstacle by resurrecting his appeal. Epstein J.A.'s finding that the appellant had no settled intention to set aside the dismissal order and only attempted to do so when the outstanding costs orders were raised at the case conference is well supported by this record.

[6] The decisions of Hourigan J.A. described the appeal as "weak" but not frivolous and vexatious. The fact that an appeal is "weak" although not frivolous and vexatious is a legitimate factor to consider on a motion to resurrect an appeal that has been dismissed on grounds of delay.

[7] We agree with the respondents that the lengthy delays throughout this proceeding have caused them prejudice and that after the delay that occurred in this case, they were entitled to rely on the finality of the order dismissing the appeal.

[8] Finally, we do not accept the submission that any delay on the part of the respondents in serving and filing their responding materials has a bearing on the outcome of this motion. Those materials essentially repeated the position taken before Epstein J.A. and any delay in their delivery did not prejudice the appellant.

[9] For these reasons, the motion to set aside the order of Epstein J.A. is dismissed with costs to the respondents fixed at $750 inclusive of disbursements and taxes.

Robert J. Sharpe J.A.

David Watt J.A.

M.L. Benotto J.A.