Court of Appeal for Ontario

Date: 2020-05-27 Docket: M51025 (C64831)

Before: Rouleau, van Rensburg and Roberts JJ.A.

Between:

Marie Graff Plaintiff (Appellant/Moving Party)

And:

Network North Reporting and Mediation, Nadine Kuehnhold, Johnson Insurance, Unifund Insurance, Dutton Brock LLP, Ryan St. Aubin, Kahler Personal Injury Law Firm Professional Corporation, Deborah J. Lewis, Brennan Kahler, Longley Vickar, Louis Brent Vickar, Fox Psychological Services, Allan Walton, Dr. Valentin, Dr. Paula B. Williams Medicine Professional Corporation and Dr. Paula Williams Defendants (Respondents/Responding Parties)

Counsel:

Marie Graff, acting in person Jay Stolberg, for the responding parties Network North Reporting and Mediation and Nadine Kuehnhold Mark M. O’Donnell, for the responding parties Johnson Inc. and Unifund Assurance Company Visnja Jovanovic, for the responding parties Dutton Brock LLP and Ryan St. Aubin, making no submissions Brian Pickard, for the responding parties Kahler Personal Injury Law Firm Professional Corporation, Deborah J. Lewis and Brennan Kahler Alan L. Rachlin, for the responding parties Longley Vickar and Louis Brent Vickar Joel Reinhardt, for the responding parties Fox Psychological Services and Allan Walton Monika S. Korona, for the responding party Dr. Valentin Andrew Porter, for the responding parties Dr. Paula B. Williams Medicine Professional Corporation and Dr. Paula Williams, making no submissions

Heard: May 20, 2020 by videoconference

Reasons for Decision

A. Overview

[1] The appellant moves to set aside the order of a single judge of this court (the “motion judge”). The motion judge dismissed her motion to set aside the administrative dismissal of her appeal.

[2] For the following reasons, we dismiss her motion.

B. Background

[3] On December 13, 2017, Favreau J. of the Superior Court of Justice issued comprehensive reasons granting summary judgment and dismissing the underlying action: Graff v. Network North Reporting and Mediation, 2017 ONSC 7451, 75 C.C.L.I. (5th) 70. More than two years have passed since the appellant filed her notice of appeal in January 2018. The appeal has yet to be perfected.

[4] The appeal has been administratively dismissed twice. The first dismissal came after the appellant had been given two extensions but failed to meet the deadlines imposed. After the first dismissal was set aside the appellant missed the new deadline imposed by the court for perfecting the appeal. Her motion to set aside this second administrative dismissal of her appeal was dismissed by the motion judge.

[5] This motion to review the motion judge’s decision was brought out of time. The appellant was granted an extension of time to bring this review motion.

C. Submissions of the Parties

[6] On this review motion the appellant has filed extensive written submissions and materials. In these materials, and in her oral submissions, the appellant submits that someone has tampered with her materials and that the respondents did not provide her with the documents required to perfect her appeal. She maintains that she has demonstrated conviction in pursuing the perfection of this appeal and that the respondents have contributed to the delay. She also argues that the motion judge erred in concluding that the appeal had no merit.

[7] The respondents explain that they presented evidence before the motion judge demonstrating that all material that the appellant needed to perfect her appeal had been supplied to her well in advance of the scheduled perfection date. In their submission, that evidence was accepted by the motion judge and nothing before us suggests that this conclusion is unreasonable or wrong.

D. Analysis

[8] On a motion to set aside a dismissal order, the motion judge must assess the justice of the case, which includes consideration of the merits of the appeal and factors analogous to those typically considered on a motion to extend the time to appeal: Sickinger v. Sickinger, 2017 ONCA 760, at para. 13.

[9] After careful review of the record, consideration of the merits of the appeal, and taking into account the extensive delay and repeated failure to meet deadlines, the motion judge exercised his discretion not to set aside the dismissal and refused to extend the time for perfection. We see no basis to interfere.

[10] Regarding the appellant’s claims that someone has tampered with her materials, possibly the respondents, there is no proof of these serious accusations. Nor is there a basis to conclude that the respondents have not reasonably assisted her in assembling documentation. These claims were not accepted by Doherty J.A., who heard an earlier motion brought by the appellant, and were rejected by the motion judge. We see no basis to interfere with these findings.

[11] The appellant’s stated commitment to perfecting the appeal is an insufficient basis to interfere with the motion judge’s decision. This action was initiated over four and a half years ago and the respondents are entitled to closure. The delays here and below have been extensive. Although the respondents may have contributed to some of the delay, the justification for the appellant’s failure to perfect the appeal given the repeated and generous extensions of time is unconvincing.

[12] In any event, as found by Favreau J., the underlying action is related to prejudice allegedly caused to the appellant in the context of her outstanding action for injury she suffered in a 2006 motor vehicle accident, which has yet to go to trial. That action remains outstanding and nothing in the record suggests that the respondents’ alleged actions and negligence, if established, caused damage to the appellant.

E. Disposition

[13] For these reasons, the motion is dismissed.

[14] Costs of this motion, and of the motion to extend the time to bring this motion, are awarded to the following responding parties:

• Network North Reporting and Mediation and Nadine Kuehnhold: in the amount of $750 collectively;
• Johnson Inc. and Unifund Assurance Company: in the amount of $750 collectively;
• Kahler Personal Injury Law Firm Professional Corporation, Deborah J. Lewis and Brennan Kahler: in the amount of $2,500 collectively;
• Dr. Valentin: in the amount of $750.

[15] Costs of this motion are also awarded to the following responding parties:

• Longley Vickar and Louis Brent Vickar: in the amount of $500 collectively;
• Fox Psychological Services and Allan Walton: in the amount of $500 collectively.

[16] All amounts are inclusive of disbursements and applicable taxes.

“Paul Rouleau J.A.”

“K. van Rensburg J.A.”

“L.B. Roberts J.A.”