Court of Appeal for Ontario

CITATION: Beazley v. Canada (Attorney General), 2020 ONCA 582

DATE: 20200916

DOCKET: M51475 (M51252)

Gillese, Lauwers and Benotto JJ.A.

BETWEEN

Cary Beazley

Plaintiff (Moving Party)

and

Attorney General of Canada and

Her Majesty the Queen in Right of Ontario

Defendants (Responding Parties)

Cary Beazley, acting in person

Marshall Jeske, for the responding party Attorney General of Canada

Roopa Mann, for the responding party Her Majesty the Queen in Right of Ontario

Heard: September 10, 2020, by video conference

REASONS FOR DECISION

[1] In this motion (the “Motion”), Cary Beazley asks that we set aside the decision of a single judge of this court which dismissed Mr. Beazley’s motion for an extension of time to file a Notice of Appeal. For the reasons that follow, the Motion is dismissed.

Background in Brief

[2] In January 2017, Mr. Beazley was diagnosed with Lyme disease. He started an action in the Superior Court of Justice in December 2017 against over 30 physicians, the Queensway Carleton Hospital, and the federal and Ontario Crowns. He pleaded a number of causes of action against the Crowns, including negligence, negligent misrepresentation, breach of contract, breach of s. 7 of the Charter, and violations of several provisions of the Criminal Code. He sought damages and equitable relief in the nature of injunctions and specific performance against various public health bodies (the “2017 action”).

[3] In early 2019, all the defendants brought motions to strike the 2017 action. On October 4, 2019, Gomery J. struck the 2017 action as against Ontario and Canada, without leave to amend (the “Decision”). Justice Gomery held that the claims against Ontario and Canada were “bound to fail” and that there were no allegations of material fact that could, if true, support any cause of action against Ontario or Canada. Further, Gomery J. determined that granting leave to amend the Statement of Claim as against Ontario or Canada would serve no purpose.

[4] The deadline to appeal the Decision passed on November 4, 2019.

[5] Mr. Beazley commenced a second action in December 2018 against Ontario and Canada (the “2018 action”).

[6] Ontario and Canada asked the court to dismiss the 2018 action pursuant to rule 2.1 of the Rules of Civil Procedure, R.R.O, 1990, Reg. 194. On December 19, 2019, Gomery J. granted the request and dismissed the 2018 action, having concluded that the statement of claim in the 2018 action was “substantially identical” to that in the 2107 action. Mr. Beazley’s appeal of the rule 2.1 dismissal remains ongoing as a separate proceeding in the court.

[7] On January 15, 2020, Mr. Beazley brought a motion to extend the time to file a Notice of Appeal in respect of the Decision.

[8] By reasons dated February 14, 2020, MacPherson J.A. (the “Motion Judge”) dismissed the motion (the “Decision Below”).

[9] In the Motion now before the Court, Mr. Beazley moves to set aside the Decision Below and asks again that he be given an extension of time within which to file a Notice of Appeal of the Decision.

Analysis

[10] The decision of a single judge of the Court of Appeal to deny an extension of time to file a Notice of Appeal is a discretionary matter. Accordingly, it is given considerable deference on a review by a panel of the Court.

[11] The Motion Judge set out and applied the well-settled legal test on a motion to extend time to appeal and found that Mr. Beazley had not met it. He found no evidence that Mr. Beazley had formed an intention to appeal within the statutory time limit and noted that Mr. Beazley had offered no explanation for the six-week delay in attempting to commence an appeal. While the Motion Judge acknowledged that the delay had not caused the Crowns to suffer any specific prejudice, he found that there was “no merit” to the proposed appeal.

[12] In the video hearing of oral argument on this Motion, Mr. Beazley told the Court that his delay in attempting to commence an appeal arose from the fact that he is self-represented and found it difficult to comply with the requisite legal requirements, and that he was also hampered because he is still ill.

[13] For the purposes of this Motion, we accept Mr. Beazley’s explanation for his delay in this matter. Nonetheless, we would not interfere with the Decision Below.

[14] The Motion Judge articulated and applied the correct legal principles and made findings that were fully available on the record before him. Importantly, like Gomery J., he found that there was no merit to the proposed appeal. Accordingly, there is no basis on which to disturb the Decision Below.

DISPOSITION

[15] The Motion is dismissed. Costs of the Motion are ordered in favour of Ontario and Canada in the respective amounts of $250 and $100, all inclusive.

“E.E. Gillese J.A.”

“P. Lauwers J.A.”

“M.L. Benotto J.A.”