Court File and Parties

Court of Appeal for Ontario

Date: 20220214 Docket: M53120 (C68672)

Thorburn J.A. (Motions Judge)

Between:

Jayesh Kumar Trivedi Plaintiff (Appellant/Moving Party)

and

Anthony Hudd and Ash Payment Solution Inc. Defendants (Respondents/Responding Parties)

Counsel: Jayesh Kumar Trivedi, acting in person William W. N. Fawcett, for the responding parties

Heard: February 11, 2022 by video conference

Endorsement

[1] The appellant and moving party, Jayesh Kumar Trivedi, seeks to set aside the Registrar’s order dismissing the appeal for delay and to extend the time to perfect his appeal.

[2] On July 22, 2018, the appellant began an action for claims arising out of a business dispute between the parties. The respondents brought a motion for summary judgment to dismiss the action on multiple grounds, including that it was statute-barred by virtue of s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, which provides that no proceeding shall be commenced after the second anniversary of the day the claim was discovered.

[3] On August 5, 2020, summary judgment was granted, dismissing the action on the grounds that the appellant had failed to commence his proceeding within the two-year limitation period and the claim was therefore statute barred.

[4] The appellant filed his notice of appeal to this court on time but failed to perfect his appeal within the required time. His appeal was dismissed for delay on December 15, 2020. Prior to the dismissal of his appeal, the Registrar of this court informed the appellant that the deadline for perfecting his appeal had passed and that if he needed further time to perfect his appeal, he could obtain consent of the opposing party or bring a motion for an extension of time.

[5] In January 2022, over a year after his appeal was dismissed, the appellant filed a motion to set aside the dismissal and extend the time to perfect his appeal.

[6] 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.

[7] It is agreed that the appellant intended to appeal within the time for bringing an appeal.

[8] The delay is lengthy. The appellant explains the delay on the basis that due to COVID-19, he lost his job and was on benefits, he was not able to seek the assistance of counsel because “most of them were not meeting the clients for consultations”, and family members died overseas as a result of the pandemic. The appellant’s mother, brother-in-law and cousin died in 2021. He claims that “Now I am again regaining my mental and financial strength and therefore I want to pursue this appeal matter.”

[9] While the appellant has undoubtedly experienced hardship during this period, there is no evidence of any attempts to contact counsel or indeed any steps taken at all to pursue the appeal since December 2020 when the appeal was dismissed.

[10] More importantly, the appeal has little chance of success. The motion judge’s conclusion that the limitation period expired prior to the issuance of a statement of claim is a finding of mixed fact and law for which the standard of review is palpable and overriding error: Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 38.

[11] The appellant’s statement of claim asserted that when money went missing from the business for reasons unknown in July of 2015, the appellant injected his own funds to get the business back up and running.

[12] The appellant wrote the respondent an email on January 28, 2016 stating that if the respondent had a lawyer draw up documents, “I don’t have to take legal action”. If not, he would prove that the respondent committed negligence. He claimed that he had lost $56,000 and another $13,000 in residuals that had not been paid. The $56,000 is the subject of this claim (while the $13,000 related to an earlier Small Claims Court action that was dismissed). The respondent replied on the same day, “Do what you have to do Jay but remember every action has an equal or greater reaction”. The motion judge held that this exchange left “no doubt about the time of discovery” and that the “email exchange is the equivalent of a smoking gun for the purposes of the Limitation Act, 2002.”

[13] At this point, the relationship had broken down and the appellant knew the respondent would not accede to his demand.

[14] In his oral submissions, the appellant advised that in early 2016, his father passed away and he was suffering depression for three months.

[15] In his grounds of appeal, the appellant claims he did not file a claim as he was seeking to settle the dispute through mutual friends. He claims that the motion judge failed to consider that the wording in his email to the respondent, stating “I do not have to take legal action”, suggested he would try to settle the matter through friends. However, the motion judge considered the appellant’s email to the respondent, including that he told the respondent that if the respondent had a lawyer draw up documents then he would not have to take legal action. The motion judge found that the respondent’s response indicated “as counsel paraphrased, ‘Come get me.’” Therefore, the motion judge found the claim was discovered in the legal sense at the latest on the date of the email correspondence, on January 28, 2016.

[16] I see no error in the motion judge’s conclusion that the email correspondence made it clear that a legal remedy would be appropriate. Given the email correspondence, trying to settle the matter through friends or negotiation did not stop the limitation period from running. A party cannot rely on his own tactical reasons for delaying the commencement of legal proceedings: Markel Insurance Company of Canada v. ING Company of Canada, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 34; Davies v. Davies Smith Developments Partnership, 2018 ONCA 550, at para. 13.

[17] In sum, although the claim was discovered by January 28, 2016, the appellant did not bring this claim until June 22, 2018, two years and six months later, and after the two-year limitation period had expired. I can see no palpable and overriding error in the motion judge’s conclusion that would allow this court to interfere with the decision of the motion judge, and therefore see no potential merit to this appeal: see Sutherland Lofts Inc. v. Peck, 2017 ONCA 803, at para. 12.

[18] Moreover, the justice of the case does not require the granting of leave. The dispute began in 2016. When the appellant did not perfect his appeal in compliance with the rules in December 2020, and his appeal was dismissed for delay, he did not act promptly to file this notice of motion: see Monteith v. Monteith, 2010 ONCA 78, at para. 21. Instead, he filed the notice of motion over a year later. In these circumstances, the appellant has not established that the balancing of the factors and the justice of the case require an extension of time.

[19] For these reasons, I find that the appellant has not satisfied the test for an extension of time and established that the justice of the case requires an extension of time. The motion to set aside the order dismissing the appeal for delay and to extend the time to perfect this appeal is therefore denied. The respondents seek $1,250 in partial indemnity costs. The moving party suggests he is impecunious. Under the circumstances, I make no order as to costs.

J.A. Thorburn J.A.