Court of Appeal for Ontario

Date: August 15, 2018 Docket: M49132 (M49000)

Judges: Sharpe, Juriansz and Roberts JJ.A.

Between

Mark Demarco and Mark Demarco the Executor of the Estate of Walter Osborn Appellant (Moving Party)

and

Silvia Valdman aka Valdman Law Professional Corporation Respondent (Responding Party)

Counsel

Mark Demarco, acting in person

Stephanie Turnham, for the responding party, Silvia Valdman

Heard and released orally: August 13, 2018

Decision

By the Court:

[1] This is a motion to review the order of Justice Fairburn dismissing the moving party's request for an extension of time to file a notice of appeal.

[2] We agree with the reasons of Justice Fairburn and see no merit in this motion. She identified and applied the applicable legal test for an extension of time and her assessment of the elements of that test in the factual context of this case attracts deference on review.

[3] The moving party, an experienced litigant, failed to provide an adequate explanation for his delay in filing the Notice of Appeal.

[4] We also agree that the appeal lacks merit. The order refusing the moving party's request that he represent the estate of Walter Osborn was, as Justice Fairburn pointed out, interlocutory in nature and no appeal lies to this court from that order.

[5] The Superior Court judge gave comprehensive reasons refusing the moving party's request to amend the statement of claim. Dismissal of the claim in the prior action resulted from the moving party's failure to post security for costs and the proposed amendment failed to identify any legal basis for a claim against the moving party's solicitor on account of that dismissal. It is not open to the appellant to challenge the underlying orders related to security for costs at this point.

[6] Finally, we agree that the justice of the case does not favour granting an extension given the moving party's long history of failure to comply with costs orders combined with the lack of merit in the proposed appeal.

[7] Accordingly, the motion is dismissed with costs to the respondent fixed at $1,545.11, inclusive of disbursements and applicable taxes.

Released: August 15, 2018

"Robert J. Sharpe J.A." "R.G. Juriansz J.A." "L.B. Roberts J.A."