CITATION: Gates v. Humane Society of Canada, 2013 ONSC 6041
DIVISIONAL COURT FILE NO.: 410/11
DATE: 20130925
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU, HIMEL AND RAMSAY JJ.
BETWEEN:
DARCY GATES
Plaintiff
(Respondent in Appeal)
– and –
THE HUMANE SOCIETY OF CANADA
Defendant
(Appellant in Appeal)
Elichai Shaffir, for the Plaintiff (Respondent in Appeal)
Michael O’Sullivan, for the Appellant
HEARD at Toronto: September 25, 2013
ramsay j. (ORALLY)
[1] On March 18, 2013, this Court, constituted by Aston J., dismissed the appellant’s motion to set aside the Registrar’s order of January 18, 2013, dismissing the appeal for delay. The appellant, represented by Michael O’Sullivan, its C.E.O., now moves under s. 21(5) of the Courts of Justice Act to set aside Aston J.’s decision.
[2] The case involves an appeal from the decision of a Deputy Judge of the Small Claims Court. The Deputy Judge awarded damages to the respondent for wrongful dismissal. The respondent’s employment was terminated in December 2009. The award of damages was made on July 21, 2011. The appeal was filed on August 22, 2011. The appeal was first dismissed by the Registrar for delay on September 21, 2012. The transcript of the trial had not been filed. The transcript was filed on October 15, 2012. It had only been ordered on September 6, 2012. On October 24, 2012, Lax J. set aside the Registrar’s order, gave Michael O’Sullivan leave to represent the appellant and ordered $500 costs against the appellant. Under Rule 61.09(1), the appellant should have perfected the appeal by December 14, 2012. It had not. On January 18, 2013, the Registrar dismissed the appeal for delay on the motion of the respondent.
[3] In dismissing the motion to set aside the order of January 18, 2013, Aston J. said:
The appeal was dismissed by the Registrar in 2012 and that order was set aside. It was dismissed again January 18, 2013 when HSC had still not perfected its appeal. This motion, seeking another indulgence, is unsupported by any evidence explaining the delay or demonstrating the merit of the appeal or even when HSC will be in a position to perfect an appeal but should have been perfected long ago. The motion to set aside the order of January 18, 2013 is dismissed.
[4] The present motion was brought on April 17, 2013, some three and a half weeks after the expiry of the four day period provided by Rule 61.16(6) for the bringing of such a motion. No motion to extend the time has been brought. If it had, we would not have granted it for the following reasons:
(i) There is no evidence to explain the delay. The appellant makes the same oral allegations to us that he made before Aston J. without filing any affidavit material to support them, before us or before Aston J.
(ii) Without evidence, the appellant submits in his factum, “The [appellant] is awaiting the results of investigations into allegations of perjury at the original trial and allegations that the trial transcript may have been altered which are being conducted by government agencies, the timing and substance over which the [appellant] has no control.” It goes on to ask that a hearing date be set and the Society be allowed, “to amend this appeal as information from the investigations by law enforcement and judicial bodies become available.”
Essentially, the same proposal was made to Aston J. Setting aside Aston J.’s order would cause prejudice to the respondent who almost five years after being fired has yet to be in a position to collect the damages, costs and interest that were ordered and which do not exceed $20,000 in total. He should not be put to further expense and delay while the Court waits for the appellant to find evidence to support its allegations.
(iii) There is no merit to the motion to set aside the order of Aston J. Given the length of the delay, the absence of any valid explanation for it and the previous indulgence given to the appellant, Aston J.’s decision was inevitable.
(iv) There is no apparent merit to the appeal.
[5] For these reasons, the motion is dismissed.
PARDU J.
[6] I have endorsed the Motion Record, “Motion to set aside order of Aston J. of March 18, 2013 dismissed for reasons delivered orally. Costs reserved.”
PARDU J.
HIMEL J.
RAMSAY J.
Date of Reasons for Judgment: September 25, 2013
Date of Release: September 27, 2013
CITATION: Gates v. Humane Society of Canada, 2013 ONSC 6041
DIVISIONAL COURT FILE NO.: 410/11
DATE: 20130925
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU, HIMEL AND RAMSAY JJ.
BETWEEN:
DARCY GATES
Plaintiff
(Respondent in Appeal)
– and –
THE HUMANE SOCIETY OF CANADA
Defendant
(Appellant in Appeal)
ORAL REASONS FOR JUDGMENT
RAMSAY J.
Date of Reasons for Judgment: September 25, 2013
Date of Release: September 27, 2013