Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220214 DOCKET: M53144

Thorburn J.A. (Motions Judge)

BETWEEN

Diella Lumaj on her own behalf and as administrator of the estate of Gjyste Lumaj deceased, Lek Lumaj, Hana Gjelaj, Emmanuelle Gjelaj, Damjan Gjelaj, Lula Lumaj and Klodian Lumaj Appellants (Moving Parties)

and

St. Michael’s Hospital, Dr. Robert James Sargeant, Joan Nurse and Jane Nurse Respondents (Responding Parties)

Counsel: Diella Lumaj and Lula Lumaj, acting in person Stephen W. Ronan, for the respondent, Dr. Robert James Sargeant Parmis Goudarzi-Malayeri, for the respondent, St. Michaels’ Hospital

Heard: February 11, 2022 by video conference

Endorsement

Relief Sought

[1] This is a motion brought by the moving parties, Diella Lumaj and Lula Lumaj, to extend the time to seek leave to appeal the endorsement of Swinton J. of the Divisional Court dated August 30, 2021.

[2] The responding parties, St. Michael’s Hospital and Dr. Robert James Sargeant, oppose the motion to extend the time to seek leave to appeal the endorsement of Swinton J. dated August 30, 2021.

The Test for Determining Whether to Grant an Extension of Time to Appeal

[3] The overarching principle for determining whether an extension of time ought to be granted is whether the “justice of the case” requires it. This includes consideration of: (i) whether the moving party formed a bona fide intention to appeal within the relevant time; (ii) the length of and explanation for the delay; (iii) prejudice to the responding parties caused, perpetuated or exacerbated by the delay; and (iv) the merits of the proposed appeal: Enbridge Gas Distribution Inc v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15; Reid v. College of Chiropractors of Ontario, 2016 ONCA 779, at para. 14. Lack of merit alone can be a sufficient basis to deny an extension of time: Enbridge, at para. 16; Reid, at para. 15.

[4] On August 25, 2007, Gjyste Lumaj came to St. Michael's Hospital. She complained of shortness of breath and chest pain and was treated for cardiac issues. She died on September 12, 2007 from apparent abdominal sepsis.

[5] The moving parties commenced their action on August 13, 2009.

[6] A dismissal order was issued by the registrar almost four years later, on May 1, 2013. At the time of the administrative dismissal, the moving parties were represented by counsel.

[7] On August 28, 2019, the moving parties delivered a Notice of Intent to Act in Person and on July 31, 2019 they brought a motion to set aside the dismissal order. The motion was heard by McGraw A.J. on December 3, 2020. He dismissed the motion.

[8] McGraw A.J. set out the legal test for setting aside a registrar’s dismissal for delay as described in Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. S.C.), at para. 41, rev’d on other grounds, 48 C.P.C. (5th) 93 (Ont. Div. Ct.) and adopted by this court: see Prescott v. Barbon, 2018 ONCA 504, 141 O.R. (3d) 616, at para. 14. Those factors are: (i) the explanation of the delay, (ii) the inadvertence in missing the deadline, (iii) the efforts to move promptly to set aside the dismissal, and (iv) the absence of prejudice to the other side.

[9] McGraw A.J. was not satisfied that the moving parties missed the five-year deadline to set the action down for trial as a result of inadvertence and he was not satisfied that the moving parties satisfied their onus of demonstrating that the responding parties would not suffer significant prejudice as a result of the delay. He concluded that, taking into consideration all of the factors, the responding parties’ right to rely on the finality and assurance of the action being dismissed for approximately six years outweighed the moving parties’ right to have the action determined on its merits, and noted that the moving parties may be able to make a claim against their former lawyer.

[10] The moving parties appealed McGraw A.J.’s decision to the Divisional Court. In her endorsement dated August 30, 2021, Swinton J. dismissed the appeal. She held that the decision of McGraw A.J. was an exercise of discretion, based upon his consideration of the above factors from Reid v. Dow Corning Corp. She confirmed that as an appellate judge, she had the power to overturn McGraw A.J.'s decision if he made an error of law or a palpable and overriding error of fact in the assessment of the evidence.

[11] Swinton J. held that McGraw A.J. applied the correct legal principles, considered the relevant factors, and adopted a contextual approach in applying the Reid v. Dow Corning Corp. test. She concluded that given the inordinate length of the delay, McGraw A.J. reasonably concluded that refusal to set aside the dismissal was just and there was therefore no basis for appellate intervention. Swinton J. ordered costs of $750 to Dr. Sargeant and $200 to St. Michael’s Hospital.

Analysis and Conclusion

[12] Pursuant to r. 61.03.1(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the moving parties were required to serve a notice of motion seeking leave to appeal within 15 days of the decision, that is, on or before September 14, 2021.

[13] On September 27, 2021, counsel for St. Michael’s Hospital emailed the moving parties to request approval for the order dismissing the appeal. Counsel for St. Michael’s Hospital advised that she had instructions not to pursue the costs awarded by Swinton J. if the moving parties did not seek leave to appeal. She asked the moving parties to advise if they intended to seek leave to appeal.

[14] Counsel for Dr. Sargeant also communicated that he had instructions not to pursue costs if leave to appeal was not sought.

[15] The moving parties did not respond.

[16] On October 11, 2021, the moving parties attempted to file a notice of motion for leave to appeal with this court. However, on October 13, 2021, this court advised the moving parties that the notice of motion was not accepted as the moving parties had not provided proof of service. The first notice the responding parties received of the appeal was three months after the deadline, on December 15, 2021.

[17] The moving parties are self-represented and have said that they have health issues although no evidence was presented to substantiate the health claims.

[18] Therefore, the record does not support a finding that the moving parties formed the intention to bring a motion to seek leave to appeal within the requisite 15 days: see Reid, at para. 16. That said, it is clear that the moving parties had the requisite intention by October 11, 2021.

[19] The moving parties have also not provided evidence to support their explanation for the delay. On the other hand, I see nothing in the record to suggest that the responding parties will suffer prejudice, apart from the cost associated with permitting the litigation to continue.

[20] Therefore, I consider the merits of the proposed appeal. The moving parties seek to appeal a decision of the Divisional Court exercising its appellate jurisdiction. Such decisions of the Divisional Court are intended to be final: Sault Dock Co. v. Sault Ste. Marie (City) (1973), 34 D.L.R. (3d) 327 (Ont. C.A.), at p. 328; Enbridge, at para. 19. A review of such a decision by this court is an exception to the general rule.

[21] Before granting leave, this court must be satisfied that the proposed appeal presents an arguable question of law, or mixed fact and law, requiring consideration of matters such as the interpretation of legislation; the interpretation, clarification or propounding of some general rule or principle of law; or the interpretation of an agreement or by-law where the point in issue involves a question of public importance: Sault Dock Co., at p. 329; Enbridge, at para. 20. This court will also consider cases where special circumstances make the matter one of public importance or where the interests of justice require that leave should be granted: Sault Dock Co., at p. 329; Enbridge, at para. 21. Finally, there may be cases in which there is clearly an error in the judgment where this court might grant leave to correct the error: Sault Dock Co., at p. 329; Enbridge, at para. 22.

[22] In their notice of appeal, the moving parties submit that McGraw A.J. misapprehended the evidence, failed to consider the moving parties’ credibility, and that they did not receive a fair trial and are the victims of a miscarriage of justice. However, they have not offered grounds for appealing the decision of Swinton J. of the Divisional Court. As noted above, Swinton J. found that McGraw A.J. applied the correct legal principles, considered the relevant factors and considered the context as provided for in Reid v. Dow Corning Corp. She therefore concluded that Associate Judge McGraw did not make an error of law or a palpable and overriding error of fact. Swinton J. therefore held that there was no basis for her to overturn the decision of McGraw A.J.

[23] In my view, the appeal does not raise an arguable question of law, and certainly not one of the type contemplated by this court in Sault Dock Co., at p. 329. Nor does the appeal involve a special circumstance or a matter of public importance.

[24] For these reasons, while I understand the importance of this matter to the moving parties, for the above reasons, they have not met the test to establish that the justice of the case requires an extension of time for filing the notice of leave to appeal. I therefore decline to permit the extension to seek leave to appeal. Counsel for the respondents indicated that the partial indemnity costs incurred are $1,705.85. While I appreciate that these costs are very reasonable, under the circumstances and understanding that the appellants are impecunious, there is no order as to costs.

“J.A. Thorburn J.A.”