Court of Appeal for Ontario
Date: 2019-03-18 Docket: M49952 (M49657)
Judges: Feldman, Hourigan and Huscroft JJ.A.
Between
Joe Machado and Paul Williamson Moving Parties (Plaintiffs)
and
Ontario Hockey Association, Bradley Grant, William Markle, Karen Phibbs, Brent Ladds, Leo Lostracco, John Kopinak, Dick Woods, John Kastner, Wayne Schnable, Bill Stobbs, Trevor Tinney, John Simmons, Rick Richardson, Larry Clarke, John Gibbons, Bruce Schlitt, Tom Strauch, Gary Moroney, Marc Ellis, Marc Mercier, Marty Savoy, Bill Billington, Paul Lake, Lloyd Parkhouse, Danny Gibson, Jeff Beatty, Mark Davies, Arnie Lawlor, Perry Bowles, Ontario Hockey Federation, Phillip McKee, Tony Foresi, Hockey Canada, Tom Renny and Scott Smith Respondents (Defendants)
Counsel
Theodore P. Charney, for the moving parties
Matthew Karabus, for the respondents
Heard: March 14, 2019
Reasons for Decision
[1] The moving parties commenced an action in 2017, claiming damages against the respondents, who consist of corporate bodies responsible for administering junior level hockey in Ontario and various current and former officers and directors. The statement of claim designated Mr. Machado as the representative for both himself and Mr. Williamson.
[2] After the statement of claim was issued, the respondents requested an extension of time to file a defence and confirmation that they would not be noted in default. Mr. Machado confirmed in writing that he would not note any of the respondents in default. Nonetheless, one day after the expiry of the time to deliver a defence, the respondents were all noted in default.
[3] On January 11, 2018, the respondents brought a motion to set aside the noting in default, which was granted by the motion judge. During argument, the motion judge observed that Mr. Machado was not a lawyer and could not represent Mr. Williamson. Mr. Machado advised that both of the moving parties were self-represented. He requested two weeks to amend the statement of claim regarding the issue of representation. The motion judge granted the moving parties approximately seven weeks to make the necessary amendment. She also ordered them to pay the respondents $5,000 for the costs of the motion.
[4] The moving parties paid the costs but otherwise failed to comply with the order. On March 1, 2018, Mr. Machado wrote to counsel for the respondents advising that "on the advice of counsel", he and Mr. Williamson had decided to hold off on further action as there likely would be additional amendments to their statement of claim.
[5] The respondents moved to dismiss the claim based on the breach of the January 11, 2018 order. The day before the return of the motion, Mr. Machado contacted counsel for the respondents requesting an adjournment so that the moving parties could pursue the retainer of counsel. Counsel for the respondents refused the request. The moving parties did not attend the hearing on March 28, 2018. The motion judge granted the respondents' motion and dismissed the claim "with prejudice", and ordered the moving parties to pay the costs of the action in the amount of $83,937.82.
[6] On July 19, 2018, after the respondents sought to enforce the costs award, the moving parties retained counsel to bring a motion in this court for an extension of time to appeal the March 28, 2018 order.
[7] The chambers judge dismissed the motion for an extension of time to appeal, concluding that the justice of the case did not warrant an extension. She found that the applicants did not form a bona fide intention to appeal within the relevant time period and that their explanation for the delay was unpersuasive. While acknowledging that there was no evidence of prejudice arising from the delay to the respondents, the chambers judge noted that both of the moving parties admitted on cross-examination that they chose not to comply with the January 11, 2018 order. The chambers judge further found that the merits of the appeal did not favour the moving parties.
[8] On this motion to review the order of the chambers judge, the moving parties seek to set aside that order and obtain an extension of time for the notice of appeal to be filed. We decline to grant that relief.
[9] A panel review of a chambers judge's decision is not a de novo determination. Where the chambers judge has made a discretionary decision, the decision is entitled to deference and the reviewing panel will not interfere absent legal error or misapprehension of material evidence: Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 OR (3d) 1, at para. 20.
[10] We see no factual or legal error in the chambers judge's analysis. The moving parties adduced no credible evidence of a timely intention to appeal. It is clear, as found by the chambers judge, that the motivating factor behind the moving parties bringing the motion for an extension of time was to avoid enforcement of the costs order against them, which occurred well after the time limit to appeal had expired. The moving parties met with their current counsel on June 22, 2018 and would presumably have been advised that time was of the essence in seeking an order for an extension of time to appeal. Despite that meeting, the moving parties did not retain counsel or communicate with responding counsel a desire to bring the motion for an extension of time to appeal until after they were informed by counsel for the respondents that the respondents were taking steps to enforce the costs award.
[11] We are also of the view that the proposed appeal is not meritorious. The moving parties made deliberate choices both not to comply with the order of January 11, 2018 to amend the statement of claim and not to attend court on March 28, 2018. The breach that led to the dismissal order was not innocuous. Rather, as found by the motion judge and accepted by the chambers judge, the moving parties "flagrantly, intentionally, and knowingly" breached the January 11, 2018 order. This finding was amply supported by the evidence and would act as a substantial bar to re-litigating the case regardless of whether the dismissal was made with prejudice.
[12] Further, the chambers judge also did not err in concluding that the justice of the case did not merit the granting of an extension of time to appeal. When a litigant seeks an indulgence, it is appropriate to consider whether the party has respected court orders and the court process. In this case, the moving parties chose to litigate on their own schedule, without regard to court orders or the dictates of the Rules of Civil Procedure.
[13] The motion is dismissed. The moving parties shall pay the respondents their costs of the motion in the agreed upon all-inclusive sum of $2,500.
"K. Feldman J.A."
"C.W. Hourigan J.A."
"Grant Huscroft J.A."