Court of Appeal for Ontario

Date: 20231103 Docket: M54635 (COA-23-CV-0243)

Before: Roberts J.A. (Motion Judge)

Between:

Victor Opara Plaintiff (Appellant/Moving Party)

and

Antonio Ciamarra Defendant (Respondent/Responding Party)

Counsel: Victor Opara, acting in person Antonio Ciamarra, acting in person

Heard: October 30, 2023

Endorsement

[1] The appellant, Victor Opara [1], seeks an extension of time to perfect his appeal of the January 25, 2023 judgment of Dineen J. Dineen J. dismissed the appellant’s summary judgment motion for a mandatory order that the respondent provide the particulars of his contract of automobile insurance and other relief, without costs. The respondent opposes the motion for an extension.

[2] The appellant’s action was commenced by statement of claim issued on November 17, 2022. [2] It arises out of a motor vehicle collision between the parties’ vehicles. The respondent’s vehicle caused minor damage to the appellant’s vehicle; the appellant sent the respondent an invoice for auto body repairs in the amount of $1,176.90.

[3] The principal relief sought in the appellant’s statement of claim is a mandatory order that the respondent provide his insurance particulars to the appellant pursuant to s. 4 [3] of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 (“the Act”). The prayer for relief also includes: a request for an interlocutory order prohibiting the respondent from interfering with the appellant’s business and practice; claims for unspecified general and special damages; punitive damages in the amount of $400; interest; and costs.

[4] The appellant commenced his appeal in a timely manner by way of notice of appeal dated February 23, 2023. No further steps appear to have been taken to perfect the appeal until the appellant received the Registrar’s notice of intention to dismiss for delay dated April 12, 2023. The Registrar’s notice required the appellant to perfect his appeal by May 3, 2023. The appellant served and attempted to file his appeal materials on May 4, 2023. On May 4, 2023, the court office advised the appellant that his materials were rejected because they were late and because of various deficiencies. The court office advised the appellant to bring a motion to extend the time to perfect the appeal or obtain the consent of the respondent. The appellant sought the respondent’s consent, but the respondent did not provide it. The appellant commenced his motion for an extension on September 28, 2023.

[5] To succeed on his motion, the appellant must meet the following well-known criteria for extending time: whether the appellant formed a timely and continuing intention to appeal; the length of the delay and explanation for the delay; any prejudice to the respondent; the merits of the appeal; and the overarching issue of whether the justice of the case requires the extension: Deokaran v. Law Society of Ontario, 2023 ONCA 602, at para. 11; Jex v. Jiang, 2021 ONCA 160, at para. 5. The appellant has not satisfied me that the justice of the case warrants the requested extension.

[6] While the appellant may have had the requisite intention to appeal, he has not sufficiently explained all of the delay in perfecting his appeal. The evidence submitted on his motion speaks to a couple of brief periods between January and the end of March and in the summer but does not adequately explain the entirety of the delay that culminated in this court’s notice to dismiss the appeal for delay nor the delay in bringing on this motion as quickly as possible. At all times, he had counsel of record. He has not satisfactorily explained why counsel could not have prepared the materials within the required deadlines.

[7] With respect to the merits of the appeal, the appeal is clearly devoid of merit, which, on its own, is sufficient to deny the extension: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at paras. 16-17; Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, at para. 21. There is no further relief to be obtained even if his appeal were successful. The appellant does not complain in his notice of appeal that the motion judge failed to order all of the relief claimed in the statement of claim: the only relief requested in the appellant’s notice of appeal is an order that the respondent has failed to provide particulars of his contract for automobile insurance and costs, and he does not seek leave to appeal Dineen J.’s disposition of costs; alternatively, he requests a new hearing.

[8] As Dineen J. noted, the primary relief sought by the appellant was to obtain disclosure of the respondent’s insurance information. On January 4, 2023, the respondent provided the appellant with the name of his insurer and his policy number. As Dineen J. also noted, the respondent appeared and provided his insurance information again during the hearing. Although the appellant complains that the respondent failed to enumerate all the exact particulars listed in s. 4(2) of the Act, he has not advised what damage to him, apart from costs, ensue as a result. Importantly, there was no evidence that the particulars provided were incorrect or unhelpful to the appellant in his quest for reimbursement of the damages to his motor vehicle. There was no basis to award punitive damages. As Dineen J. concluded: “I see no basis to make any further order as a result and I would not award costs in the circumstances.” The appellant has pointed to no reversible error in Dineen J.’s conclusion. Nor in his costs disposition, which is entitled to considerable appellate deference.

[9] Finally, with respect to the issue of prejudice, the respondent does not point to any discrete prejudice, such as the loss of a witness, but complains that he is harassed by the continuation of this matter. The overall prejudice to the respondent by the continuation of a meritless appeal that deprives him of the finality of the dismissal of the appellant’s claim also informs the justice of the case ground: Chandra v. Canadian Broadcasting Corp., 2016 ONCA 448, 349 O.A.C. 93, at para. 84; Jex, at para. 11. This factor further supports the dismissal of the extension request.

[10] Accordingly, the motion for an extension of time to perfect the appeal is dismissed. There will be no costs of this motion.

“L.B. Roberts J.A.”

Notes:

[1] I permitted the appellant, a practicing lawyer, to make submissions on this motion as the appellant advised that his counsel of record could not attend due to the death of his father and any further delay in this matter would not be in the parties’ interests.

[2] The statement of claim was not in the motion materials or the Appeal Book but was provided by the appellant following the hearing, along with the costs outline that was before Dineen J.

[3] According to s. 4(2) of the Act, “particulars of the contract of automobile insurance” means: the name and address of the insured; the make, model and serial number of the insured vehicle; the effective date and expiry date of the contract; the name of the insurer; the name of the insurer’s agent, if any; and the policy number of the contract.