Court of Appeal for Ontario

Date: 2019-06-24 Docket: C66456

Judges: Hourigan, Paciocco and Fairburn JJ.A.

Between

Safa Massoumi and 1824380 Ontario Inc. Plaintiffs (Appellants)

and

Eleni Bafas also known as Helen Bafas Defendant (Respondent)

Counsel

Sakina Babwani, for the appellant

Robert Kalanda, for the respondent

Heard and released orally: June 24, 2019

On appeal from: the judgment of Justice Andrew J. Goodman of the Superior Court of Justice, dated December 14, 2018.

Reasons for Decision

[1] The appellants appeal a motion judge's discretionary decision to deny their last-minute request for an extension of time to set an action down for trial. They claim that the motion judge committed legal errors and palpable and overriding errors of fact. We disagree, and dismiss the appeal.

[2] The appellants take no issue with the test the motion judge applied. He concluded that it is not generally in the interests of justice to grant an extension without an acceptable explanation for the delay, and a demonstration that the respondents will not suffer non-compensable prejudice. The motion judge reasonably found that the appellants failed to satisfy either of these considerations.

[3] We see no misapprehension by the motion judge of the appellant's explanation for the delay. He appreciated that the appellants were relying broadly on Mr. Massoumi's medical condition to explain the delay. The evidence offered by the appellant to establish that Mr. Massoumi's medical condition prevented him from prosecuting his lawsuit was inadequate. The motion judge was correct in noting that the medical reports did not relate Mr. Massoumi's medical challenges to his ability to prepare the lawsuit for trial, and that the only report that addressed his mental and intellectual capacity was stale or dated, from 2014.

[4] Moreover, despite his pre-existing medical condition, Mr. Massoumi was able to advance the litigation until 2015, and even after that date, was able to pursue to its conclusion in October 2018 a personal injury action related to his brain injury.

[5] The motion judge's determination that the appellants had not adequately explained the delay was made without palpable and overriding error.

[6] Nor would we interfere with the motion judge's conclusion that the appellants have failed to show that the extension would not cause non-compensable prejudice to the respondents. It was appropriate for the motion judge to presume that relevant litigation documents were probably no longer available, given that the appellants have failed to produce those documents, despite having undertaken to look for them since March of 2015.

[7] We see nothing unfair with the motion judge considering the respondent's evidence about the inability of the appellants to pay costs without examining the merits of the appeal. The appellants' ability to pay costs was a live issue in the motion. The appellants bore the onus of demonstrating that any prejudice from the delay could be compensated yet chose not lead any evidence of their ability to pay costs. Their decision not to lead such evidence cannot preclude the respondents from addressing the financial abilities of the appellant.

[8] Moreover, the appellants did not ask for an adjournment to respond. They cannot now claim that the process was unfair.

[9] We do not disagree with the appellants' claim that differences can be found between other decisions denying extensions, and this case. This, however, was a discretionary decision made without error of principle or palpable or overriding error.

[10] The appeal is therefore dismissed. The appellants are jointly and severally liable to pay to the respondent costs on this appeal in the amount of $6,500, inclusive of applicable taxes and disbursements.

"C.W. Hourigan J.A." "David M. Paciocco J.A." "Fairburn J.A."