Court of Appeal for Ontario

Date: 20240123 Docket: COA-24-OM-0009

Gillese J.A. (Motions Judge)

Between

Mandie Eddie Plaintiff (Respondent/Responding Party)

and

Robert Lepp (a.k.a. Bob Lepp) Defendant (Appellant/Moving Party)

Counsel: Robert Lepp, acting in person Gwendolyn L. Adrian, for the respondent/responding party Charles Painter, for The Corporation of the Town of Aurora

Heard: January 22, 2024

Endorsement

[1] Mandie Eddie sued Robert Lepp for defamation by Statement of Claim issued on November 9, 2018. Mr. Lepp brought a motion for summary judgment to dismiss the action, and Ms. Eddie brought a motion for reverse summary judgement granting the relief she sought. Justice Pollak heard the motions on July 12-13, 2022, and released reasons for decision dated January 3, 2023. However, because the parties could not reach agreement on the form and content of the order, steps had to be taken to resolve that matter. [1] In the result, the order flowing from the disposition of the motions is dated August 17, 2023 (the “Order”). The Order dismissed Mr. Lepp’s motion and granted Ms. Eddie’s cross-motion.

[2] Mr. Lepp filed no sworn evidence on the motions, despite twice being advised by the court he needed to file sworn evidence in support of his motion and to defend against Ms. Eddie’s motion. Justice Pollak accepted Ms. Eddie’s uncontradicted and unchallenged evidence. She held that numerous of Mr. Lepp’s blog posts and emails contained defamatory statements that were either false or substantially misleading. She accepted Ms. Eddie’s evidence that, as a result of the defamatory statements, she lost her employment and was unable to find alternate employment.

[3] The Order required:

• Mr. Lepp to pay Ms. Eddie $550,000 in general, aggravated, and punitive damages;
• Mr. Lepp to remove and/or delete all online publications about Ms. Eddie, including all comments posted by third parties; and
• granted a permanent injunction preventing Mr. Lepp from publishing any further material about Ms. Eddie whether explicitly naming Ms. Eddie or impliedly referring to her.

[4] More than a year has passed since Pollak J. released her reasons for decision on the motions. Mr. Lepp now moves for an extension of time to file a Notice of Appeal from the Order (the “Motion”). Before deciding the Motion, it is necessary to briefly discuss another action that involves the parties.

[5] Mr. Lepp had commenced his own lawsuit relating to the underlying matters in issue. He claimed against the Town of Aurora, the Regional Municipality of York, the York Regional Police Services Board, the York Regional Police, Ms. Eddie, and two other individuals (the “Second Action”). Regional Senior Justice Edwards dismissed the Second Action, as against Ms. Eddie, on September 18, 2023. He held that the claims against Ms. Eddie in the Second Action were res judicata as a result of the Order.

[6] Mr. Lepp then brought a motion to have the Order stayed. Justice Centa dismissed Mr. Lepp’s stay motion on October 23, 2023.

[7] The trial of the Second Action commenced on November 28, 2023, before Leibovich J., and proceeded for nine days until December 8, 2023. It is due to resume on January 24, 2024. The defendant, the Town of Aurora, called Ms. Eddie as a witness.

[8] Counsel for the Town of Aurora signaled that there might be issues with the scope of Mr. Lepp’s cross-examination of Ms. Eddie, given the decisions of Pollak J. and Edwards R.S.J. The cross-examination was adjourned, and Mr. Lepp and the Town of Aurora were given an opportunity to file written submissions. An oral hearing on this issue was held on December 13, 2023. In an endorsement dated December 21, 2023, Leibovich J. stated that:

In my view it is crystal clear having received Mr. Lepp’s written and oral submissions that he wishes to cross‑examine Ms. Eddie to show that because of her personal vendetta against him, she issued a provincial offences ticket and lied to the police. Mr. Lepp wishes to cover the same ground that is set out in his statement of claim, that was contained in his blogs and that were found to be false or substantially misleading by Justice Pollack. … It would be abusive to allow Ms. Eddie to be subjected to a cross-examination aimed at demonstrating what another court has already found did not happen.

At the heart of Mr. Lepp’s position is his complaint that Justice Pollak and, by extension, Justice Edwards, were wrong. However, Mr. Lepp has not appealed those decisions and I am bound by them. Mr. Lepp also complains that it is simply unfair to deny him his one chance to question Ms. Eddie. This was not his one chance. He had every opportunity to cross-examine Ms. Eddie on her affidavit in support of her request for summary judgment but for reasons, which are his own, failed to do so.

[9] Justice Leibovich concluded that Mr. Lepp could not question Ms. Eddie on various issues related to the previous decisions, but he could “ask other relevant questions as long as they are not an attempt to prove Ms. Eddie is corrupt, a liar, lied to the police or otherwise relitigate or collaterally attack the findings of Justice Pollak.”

Test on Motion to Extend Time for Filing a Notice of Appeal

[10] The test on a motion to extend time for filing a notice of appeal is well‑settled. The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:

1. whether the moving party formed a bona fide intention to appeal within the relevant period;
2. the length of, and explanation for, the delay in filing;
3. any prejudice to the responding party that is caused, perpetuated or exacerbated by the delay; and,
4. the merits of the proposed appeal.

See Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15; Howard v. Martin, 2014 ONCA 309, 42 R.F.L. (7th) 47, at para. 26.

[11] In my view, the justice of the case requires that this motion be dismissed.

[12] I do not accept that Mr. Lepp formed a bona fide intention to appeal within the relevant period nor am I satisfied by his explanation for the delay in filing.

[13] By his own admission, Mr. Lepp decided he would not file an appeal against the Order within the relevant time period prescribed by the Rules because he wanted to focus his time and attention on the Second Action. He said that he chose to not file a notice of appeal because he hoped to gain evidence in the Second Action that he could use in an appeal of the Order. On this Motion, he said that some testimony given in the Second Action is what he needs as evidence in an appeal of the Order and, having gotten that, he now wants to proceed with an appeal of the Order. This is not an acceptable explanation for the delay. Mr. Lepp cannot choose to ignore court rules and timelines because he wanted to follow a different process. It was Mr. Lepp’s obligation to put his best foot forward on the motions before Pollak J. That he did not do.

[14] Furthermore, I see no merit to the proposed appeal. The proposed grounds are largely challenges to the factual findings of Pollak J. or exercises of her discretion. Both are discretionary matters to be afforded significant deference on appeal. In assessing the merits, it must be recalled that there was no competing evidence before Pollak J.

[15] Further, and importantly, apart entirely from the prejudice that the delay would cause Ms. Eddie, in my view, granting Mr. Lepp an extension of time to file a Notice of Appeal would harm the administration of justice. It is virtually inevitable that if the Motion is granted, it would result in a mistrial of the Second Action. It would fundamentally change the basis on which the Second Action has proceeded, namely, Pollak J.’s decisions and the Order. Allowing a litigant – in this case, Mr. Lepp – to change the scope of litigation midtrial would be highly prejudicial to the other parties who have participated in nine days of trial. In my view, this must form part of a consideration of the justice of the case and militates against granting the Motion.

Disposition

[16] Accordingly, the motion is dismissed with all-inclusive costs to Ms. Eddie of $5,000, and to the Corporation of the Town of Aurora of $3,500.

“E.E. Gillese J.A.”

[1] On August 16, 2023, Pollak J. released an endorsement relating to the wording of the Order, and on August 17, 2023, the Order was signed by the Registrar.