Court File and Parties

Court of Appeal for Ontario Date: 2023-10-06 Docket: M54394 (M53960)

Before: Pepall, van Rensburg and Monahan JJ.A.

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 Plaintiffs (Moving Parties)

And: St. Michael’s Hospital, Dr. Robert James Sargeant, Joan Nurse and Jane Nurse Defendants (Respondents)

Counsel: Diella Lumaj and Lula Lumaj, acting in person Parmis Goudarzi-Malayeri, for the respondent St. Michael’s Hospital Stephen Ronan and Zahra Vaid, for the respondent Dr. Sargeant

Heard: September 29, 2023

Reasons for Decision

[1] On August 30, 2021, the Divisional Court dismissed the moving parties’ appeal from a 2013 decision dismissing their action against the respondents for delay. That action was commenced in 2009 and related to medical care provided in 2007 to Gjyste Lumaj, the mother of the moving party, Diella Lumaj, and the grandmother of the moving party, Lula Lumaj. The moving parties maintain that due to the negligence of their counsel, they only discovered in 2019 that the action had been dismissed. They are now self-represented.

[2] Before us, the moving parties move for an order to review and set aside the January 19, 2023 order of Sossin J.A., dismissing their motion for an extension of time to review the May 13, 2022 order of Gillese J.A. Gillese J.A., in turn, had dismissed the moving party’s motion for an extension of time to review the February 14, 2022 order of Thorburn J.A., which had dismissed their motion for an extension of time to seek leave to appeal the August 30, 2021 order of the Divisional Court.

[3] A panel review of a chambers judge decision under s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 is not a de novo determination. In this case, this means that the moving parties have to establish that Sossin J.A. made a legal error or misapprehended the evidence: Machado v. Ontario Hockey Association, 2019 ONCA 210, at para. 9.

[4] We have carefully reviewed the various orders and reasons given at each stage of this proceeding and are satisfied that the request for an extension of time to bring this matter before this court was properly denied, including before Sossin J.A. He described and applied the correct test and properly exercised his discretion. We see no basis on which to interfere.

[5] The motion is dismissed. There will be no order as to costs.

"S.E. Pepall J.A." "K. van Rensburg J.A." "P.J. Monahan J.A."