CITATION: Paulsson v. Paulsson, 2010 ONSC 117
DIVISIONAL COURT FILE NO.: 192/09
DATE: 20100105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
GUNNAR S. PAULSSON
Appellant/Respondent
– and –
GAEL L. PAULSSON
Respondent/Applicant
In Person
Golnaz Emam, for the Respondent/ Applicant
HEARD at Toronto: January 5, 2010
SACHS J. (Orally)
[1] This is a motion to set aside the order of the Registrar dated November 23, 2009, dismissing Mr. Paulsson’s appeal.
[2] On September 15, 2009, Jennings J. granted Mr. Paulsson leave to appeal on one issue, namely, whether or not the term that Mr. Paulsson pay costs within ninety days of April 22, 2009 was appropriately made. After leave was granted, Mr. Paulsson and counsel for the respondent engaged in correspondence concerning the steps that Mr. Paulsson had to take to perfect his appeal.
[3] The record before me reveals that Mr. Paulsson was late filing his Notice of Appeal, but that counsel for the respondent consented to the late filing of that notice. However, she also made it clear on three separate occasions in writing that she would be insisting that Mr. Paulsson comply with all of the deadlines set out in the Rules concerning perfecting his appeal and that, if he did not do so, she would take steps to have his appeal dismissed.
[4] The record before me also made it clear that Mr. Paulsson knew that he had thirty days within which to perfect his appeal. In the result, Mr. Paulsson did not perfect his appeal within the time period prescribed. Furthermore, he took no steps to extend the time for doing so until this motion. His reasons for the delay are that he was unrepresented, he had taken a job in Germany and he was busy pursuing other litigation. He also misread the Rules of Civil Procedure and concluded that his appeal could not be dismissed for delay unless he had failed to perfect it for a year.
[5] In Viola v. Hornstein, Himel J., sitting as a judge of the Divisional Court, set out that in order to obtain an extension of the time to perfect an appeal the appellant must satisfy the Court of the justice of the case. She also outlined the following relevant considerations, the length of the delay, a settled intention to appeal within the prescribed time, the merits of the appeal and any prejudice to the respondent.
[6] In Scaini v. Prochnicki, 2007 ONCA 63, 2007 CarswellOnt. 408 at para. 12, the Court of Appeal set out a test on a motion to set aside a Registrar’s dismissal of an action. That test was a four-prong test -the four criteria being the explanation for the litigation delay, any inadvertence in missing the deadline, the motion being brought promptly and no prejudice to the responding parties on the motion.
[7] While the case of Scaini, supra, dealt with the dismissal of an action by the Registrar, this four-prong test was adopted by the Ontario Divisional Court with respect to a dismissal of a party’s appeal to set aside a Registrar’s order in Birmingham. v. Birmingham, 2007 CarswellOnt. 9111, aff’d at 2008 CarswellOnt. 1761 at para. 2.
[8] On the motion before me, the relevant criteria that emerged are the length of the delay, whether or not there was a settled intention to appeal within the prescribed time, the merits of the appeal, the prejudice to the respondent and the explanation for the delay.
[9] I will now deal with each of these factors in turn.
(i) The Length of the Delay
[10] In this case the appeal should have been perfected in November of 2009. Mr. Paulsson took steps to bring this motion in December of 2009. Thus, the delay cannot be characterized as extensive.
(ii) A Settled Intention to Appeal Within the Prescribed Time
[11] Mr. Paulsson’s filing of his Notice of Appeal would indicate his intention to pursue this matter.
(iii) The Merits of the Appeal
[12] Jennings J. speaks to this issue and his view that it is an important one. I do not propose to revisit his decision.
(iv) The Prejudice to the Respondent
[13] The respondent quite legitimately submitted that she has a right to insist that Mr. Paulsson abide by the same rules as any other litigant and that he cannot continue to insist that he has the right to indulgences in this action because of other actions he is pursuing or because he is unrepresented. We do not have a different set of rules for unrepresented parties. Having said this, it is my view that with respect to this motion, any prejudice suffered by the respondent can be compensated by an appropriate term respecting costs thrown away.
(v) The Explanation for the Delay
[14] I have already dealt with this issue in my remarks concerning the third factor. To be more explicit, I was not satisfied with Mr. Paulsson’s explanation for the delay. He knew that he would be moving out of the country before he brought the motion for leave to appeal and it is his responsibility to arrange matters so that if he brings a court proceeding, he can pursue it within the time limits prescribed by the rules. It is no answer to say that he also has other litigation he was pursuing. If he wishes to engage in this litigation he must give it the priority it deserves. He also knew that the appeal had to be perfected within thirty days and he chose to ignore that obligation. Thus, there was no inadvertence in missing the deadline.
[15] Balancing all of these factors, it is my view that the justice of this case demand that the Registrar’s order of dismissal be set aside, but on terms. Those terms are that Mr. Paulsson is to take all necessary steps to perfect his appeal within ten days of today’s date and, that within ten days of today’s date he is to pay to the respondent her costs of this motion. It is only by such an order that the prejudice to the respondent caused by Mr. Paulsson’s behaviour can be addressed. The Respondent was entitled to resist this motion, especially given the history of this litigation and the notice her counsel had given to Mr. Paulsson that time lines would be insisted upon. The appellant is now working and is in a position to pay a reasonable costs order. I will hear submissions from the parties on the quantum of costs but before I do so, I wish to make it clear that Mr. Paulsson also brought a request before me to allow him to file before the panel hearing his appeal the report prepared and delivered by his forensic accountant.
[16] In my view, Jennings J. dealt with that issue, but, in any case, the issue is not one that should be pursued before me. If Mr. Paulsson wishes to raise it before the panel and in particular, address the question of whether Jennings J. dealt with the issue, he may do so.
COSTS
[17] The respondent has requested costs in the amount of over $9,000.00. In my view, given the issues in dispute, this amount is excessive. I am fixing the amount that must be paid by the appellant to the respondent within ten days of this order and must be paid before the order of the Registrar dismissing the appeal is set aside at $3,000.00. Given the appellant’s submission that he has been able to save $1,000.00 per month since his employment, this amount will not effectively bar him from pursuing the litigation.
SACHS J.
Date of Reasons for Judgment: January 5, 2010
Date of Release: January 13, 2010
CITATION: Paulsson v. Paulsson, 2010 ONSC 117
DIVISIONAL COURT FILE NO.: 192/09
DATE: 20100105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
GUNNAR S. PAULSSON
Appellant/Respondent
– and –
GAEL L. PAULSSON
Respondent/Applicant
oral REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: January 5, 2010
Date of Release: January 13, 2010