CITATION: Rourke v. Lehrer, 2019 ONSC 5801
DIVISIONAL COURT FILE NO.: 297/18 DATE: 20191007
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, S.T. Bale, and Favreau JJ.
BETWEEN:
TIM ROURKE
Tim Rourke, acting in person
Appellant
– and –
ANDY LEHRER
Andy Lehrer, acting in person
Respondent
HEARD at Toronto: October 7, 2019
SWINTON J. (Orally)
[1] Mr. Rourke has brought a motion pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 to set aside a decision of Conway J. dated September 13, 2018. She dismissed his motion to extend the time to bring an appeal of a Small Claims Court order dated June 12, 2015.
[2] The motions judge applied the correct legal principles, as set out in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 at para. 15, in determining whether to extend the time. Mr. Rourke was aware of the test, given the endorsement of Gans J. at the time of the first appearance of the motion to extend time on June 11, 2018.
[3] The delay here is lengthy – over three years at the time of the motion. Conway J. found that Mr. Rourke provided no reasonable explanation for the delay, and it appeared that he did not form an intent to appeal within the appeal period. Nor did he take steps to appeal for at least two years thereafter.
[4] We see no merit to the motion to set aside. Having read the transcript, we see no basis for a claim of reasonable apprehension of bias or unfairness in the hearing before Conway J. She applied the correct legal principles and exercised her discretion not to extend time. There was no palpable and overriding error of fact.
[5] Before the Divisional Court today, Mr. Rourke seemed concerned that we were not willing to hear the merits of his defence to the Small Claims Court proceeding or to deal with his ongoing disputes with the respondent, Mr. Lehrer.
[6] Those matters are not before us. This Court can only proceed to deal with an appeal from a Small Claims Court order. Mr. Rourke has no appeal at this time and, as addressed above, we see no merit to his motion to extend the time to appeal the June 2015 order.
[7] Accordingly, the motion pursuant to s. 21(5) is dismissed.
[8] I have endorsed the Motion Record as follows: “This motion is dismissed for oral reasons delivered today. Costs to the respondent fixed at $500.00.”
Swinton J.
I agree
S.T. Bale J.
I agree
Favreau J.
Date of Oral Reasons for Judgment: October 7, 2019
Date of Release: October 8, 2019
CITATION: Rourke v. Lehrer, 2019 ONSC 5801
DIVISIONAL COURT FILE NO.: 297/18 DATE: 20191007
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, S.T. Bale, and Favreau JJ.
BETWEEN:
TIM ROURKE Appellant
– and –
ANDY LEHRER Respondent
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Oral Reasons for Judgment: October 7, 2019
Date of Release: October 8, 2019