Court of Appeal for Ontario

Date: 2018-05-25 Docket: M49084 Motion Judge: Brown J.A.

Between

Simintaj Rahsepar Applicant (Appellant)

and

Ms. Kathy Estabrooks Respondent (Respondent)

Counsel

Simintaj Rahsepar, acting in person

Andi Jin, for the respondent

Heard: April 30, 2018

Reasons for Decision

Introduction

[1] The applicant, Simintaj Rahsepar, seeks an order granting her an extension of time to file a notice of appeal from the order of James J. dated June 7, 2017 striking out her statement of claim without leave to amend.

[2] For the reasons that follow, the motion is dismissed.

The Governing Principles and Analysis

[3] The principles that govern her request are those set out in cases such as Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35 (Ont. C.A., in Chambers): (i) whether the applicant formed an intention to appeal within the relevant period; (ii) the length of, and explanation for, her delay; (iii) the prejudice to the respondent; (iv) the merits of the appeal; and (v) whether the justice of the case requires the extension sought. I will address each ground.

The intention to appeal

[4] Following the hearing of this motion, respondent's counsel wrote the court to advise that on July 7, 2017 the applicant served a notice of appeal on the Crown Law Office – Civil, but evidently she did not file it with the court. The respondent does not contest that the applicant formed an intention to appeal within the requisite period.

The length of and explanation for the delay

[5] The applicant filed her motion for an extension order on April 18, 2018, some 10 months following the order she seeks to appeal. That is a long delay.

[6] The applicant offers two explanations for her lengthy delay.

[7] First, she deposes that it took from June 2017 until January 19, 2018 for this court to consider her request for a fee waiver. When the court grants or refuses a fee waiver, a letter or email usually is sent to the party. The applicant has not included in her motion material any application for a fee waiver or any communication from the court approving or denying her fee waiver. Although she included a January 19, 2018 letter from the Special Counsel, Office of the Chief Justice, responding to her letter of October 10, 2017, which apparently concerned a fee waiver, the applicant did not include her October letter. As a result, I simply lack the evidence to assess this part of the applicant's explanation for her delay.

[8] Second, the applicant deposes that since June 2017 she has suffered from various medical problems that prevented her from filing a notice of appeal or bringing a motion for an extension of time. The applicant filed extensive evidence on this point, both before and at the hearing. Some of the evidence covers her medical history well before the order she seeks to appeal.

[9] I have reviewed it all. Having done so, I see no evidentiary basis to support the applicant's contention that any medical condition prevented her from filing her motion for an extension of time until April 2018.

Prejudice to the respondent

[10] The respondent does not contend she has suffered any prejudice from the applicant's delay.

Merits of the appeal

[11] In his endorsement, the motion judge stated that "[t]here are numerous obvious pleading shortcomings in the [amended] statement of claim." As well, when the current claim was assessed in the larger context of related proceedings that had been dismissed on their merits, this "action is also an abuse of process".

[12] The respondent, Ms. Estabrooks, is an employee in the Registrar's office of the Superior Court of Justice in Ottawa. The applicant sued the respondent for damages for "inflicting unnecessary emotional pain, suffering and uncertainty."

[13] The applicant's claim is very difficult to follow. As best as I can determine, she is alleging that the respondent mismanaged paperwork and court filings involved in the applicant's related proceeding, which resulted in certain orders being made against and to the prejudice of the applicant. The respondent's behaviour also caused the applicant stress.

[14] Even on the most liberal reading of the applicant's amended statement of claim, I am unable to discern a cause of action. I see no merit to her appeal.

[15] I would note that this court's records disclose that the applicant brought two appeals from the dismissal of her related proceedings: C61938 and C61939. Both appeals were dismissed. In an endorsement dated January 27, 2017 in C61938, a panel of this court wrote:

These actions began some 8-1/2 years ago. The summary judgment motion judge and two judges of this court have decided the matter to be devoid of merit. The appellant continues to bring new motions. We have reviewed the latest material. We too see no merit in the claim. Valuable resources have been expended. The respondents have been put to needless expense. Enough is enough. The motions are frivolous, vexatious and an abuse of the court process. The motions are dismissed.

The justice of the case

[16] The applicant complains the motion judge made his order in her absence and in the face of her request for an adjournment due to a medical problem. In his endorsement, the motion judge recites at length the multi-year history of the respondent's motion to strike and the delays in scheduling that motion as a result of the applicant's conduct.

[17] I have considered that history, together with all of the factors set out above. When considered as a whole, I conclude that the justice of the case requires that I dismiss the applicant's motion, especially given the absence of a reasonable explanation of the applicant's delay in seeking an extension of time and the absence of any merit to her claim.

Disposition

[18] The applicant's motion is dismissed. The respondent does not seek its costs of the motion.

"David Brown J.A."