Court File and Parties

CITATION: Harvey v. Capital One Bank, 2021 ONSC 1180

DIVISIONAL COURT FILE NO.: DC-19-5-00

DATE: 20210216

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Shaun David Harvey, Appellant/Responding Party

AND: Capital One Bank (Canada Branch) and Common Collection Agency, Respondent/Moving Party

BEFORE: Favreau J.

COUNSEL: Justin Manoryk, for the Moving Party, Capital One Bank No one appearing for the Responding Party, Shaun David Harvey

HEARD: in writing at Toronto

Endorsement

[1] In Reasons for Decision dated June 26, 2019, Deputy Judge C. Dickinson of the Small Claims Court dismissed Shaun David Harvey’s defamation claim against Capital One Bank (“Capital One”). The Deputy Judge awarded costs of $7,500 plus disbursements of $1,250 to Capital One.

[2] Mr. Harvey commenced an appeal of the Deputy Judge’s decision on July 29, 2019.

[3] Capital One recently contacted the Divisional Court for the purpose of bringing a motion to obtain an order dismissing the appeal for delay.

[4] In accordance with the Divisional Court’s current practice during the COVID-19 pandemic, all hearing requests are subject to case management and the Court convened a telephone case conference scheduled for February 9, 2021. Mr. Harvey was notified of the case conference but did not dial in for the call.

[5] During the case conference, I directed counsel for Capital One to send the Court the motion materials in support of the motion to dismiss the appeal for delay, after which I would consider the motion in writing. I indicated that, if the materials warranted making an order dismissing the appeal for delay, I would be prepared to make an order giving Mr. Harvey 10 days to perfect his appeal failing which the Court would dismiss the appeal for delay.

[6] Counsel for Capital One sent the motion materials to the Court on February 9, 2021.

[7] I have reviewed the materials. They establish that, after serving his notice of appeal, Mr. Harvey ordered the trial transcript. A Certificate of Completion was issued on December 5, 2019. Pursuant to Rule 61.09(1)(b) of the Rules of Civil Procedure, Mr. Harvey was required to perfect his appeal 60 days after receiving the trial transcripts which was February 3, 2020. On January 31, 2020, Mr. Harvey and counsel for Capital One attended scheduling court in Kitchener. The appeal was not scheduled because Mr. Harvey had not yet perfected his appeal. Mr. Harvey has not perfected his appeal since that date.

[8] The materials do not include any evidence of what, if any, communications, counsel for Capital One had with Mr. Harvey since the attendance in Kitchener about perfecting his appeal.

[9] Given Mr. Harvey’s delay in perfecting the appeal and his non-attendance on the case conference, it appears that Mr. Harvey may not intend to pursue this appeal. However, he should be given a chance to perfect his appeal.

[10] I therefore make an order that Mr. Harvey is to perfect his appeal by serving his appeal materials on counsel for Capital One by email by no later than March 1, 2021. If he fails to do so, counsel for Capital One can contact the Court to obtain an order dismissing the appeal. Such a request is to be copied to Mr. Harvey and include an affidavit addressing the issue of whether Mr. Harvey has complied with this order. If Mr. Harvey serves his materials by email on counsel for Capital One by March 1, 2021, the parties can request a case conference to schedule the appeal.

[11] Costs of this motion are to be fixed at the time the appeal is dismissed if it is not perfected as directed above or, if the appeal proceeds, costs are to be fixed by the judge hearing the appeal.

[12] This endorsement is an order of the Divisional Court. It is effective when made. No formal order is required.

Favreau J.

Date: February 16, 2021