2019 ONSC 3766
DIVISIONAL COURT FILE NO.: DC18-1125 DATE: 20190619
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Glithero, D.L. Corbett, Favreau JJ.
BETWEEN:
College of Traditional Chinese Medicine and Acupuncturists
Applicant
– and –
George Li
Respondent
Jaan Lilles, for the Applicant
Meng Dan Li, for the Respondent
HEARD at Oshawa: June 17, 2019
D.L. Corbett J (Orally)
[1] The moving party seeks to review before us the decision of Justice Charney sitting as a single judge of the Divisional Court, pursuant to subsection 21(5) of the Courts of Justice Act.
[2] Counsel for the moving party argues that her client was effectively caught by surprise by a change in the nature of the motion below, which was framed as a registrar’s motion but was heard by a single judge of the Divisional Court.
[3] Ms. Li argues that, her firm having been retained on April 2, 2019, it was obvious the appeal could not be perfected by the return date of the motion on April 5, 2019. Thus the registrar would have had no discretion but to dismiss the appeal. The moving party would then have had an opportunity to move and would have moved, in front of a single judge, with a proper record, including presumably an affidavit from the client, seeking to overturn the registrar’s decision.
[4] There are three problems with this argument on this appeal.
This argument was not made to Justice Charney. Ordinarily this Court will not entertain arguments that were not made in front of the judge below;
The record placed before Justice Charney by the moving party is not consistent with the argument now made before us. The argument made before us would have explained a complete failure by the moving party to file any materials at all. It does not explain the moving party’s decision to file materials that were deficient on the key issues before Justice Charney;
The moving party has not sought to adduce fresh evidence on this motion to address deficiencies below that it says result from being caught by surprise by the nature of the motion.
[5] The moving party responded substantively to the issues decided by Justice Charney. The moving party did not argue before Justice Charney that he was caught by surprise nor did he try to fix the manifest deficiencies in the record below when appearing before us.
[6] Justice Charney applied the correct legal test below. He considered whether to exercise his discretion to extend time for this appeal and decided not to do so. His exercise of discretion is well supported by his factual findings, which in turn were available on the record before him. Certainly there is no palpable or overriding error in his conclusions.
[7] Further, this motion is itself out of time. The motion was to be brought within four days of the decision below. It was not brought for 42 days after the decision of Justice Charney. The file shows a pattern of delay and disregard by the moving party as found by Justice Charney with no evidence, let alone an explanation, from the moving party himself.
[8] The motion is dismissed with costs to the responding party fixed at $5,000.00 inclusive.
___________________________ D.L. Corbett J.
I agree
Glithero J.
I agree
Favreau J.
Date of Reasons for Judgment: June 17, 2019
Date of Release: June 19, 2019
2019 ONSC 3766
DIVISIONAL COURT FILE NO.: DC18-1125 DATE: 20190619
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Glithero, D.L. Corbett, Favreau JJ.
BETWEEN:
College of Traditional Chinese Medicine and Acupuncturists
Applicant
– and –
George Li
Respondent
ORAL REASONS FOR JUDGMENT
D.L. Corbett J
Date of Reasons for Judgment: June 17, 2019
Date of Release: June 19, 2019