CITATION: Go Fleet Corporation v. So., 2021 ONSC 2199
DIVISIONAL COURT FILE NO.: 651/20 DATE: 20210323
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Kristjanson J.
B E T W E E N:
GO FLEET CORPORATION
Gloria Imchim for the Appellant/Moving Party
Appellant/Moving Party
- and -
KEVIN SO
Shelby Matthews for the Respondent
Respondent
HEARD by videoconference: March 16, 2021
Kristjanson J.
[1] The moving party, Go Fleet Corporation, seeks an extension of time to serve and file its notice of appeal from the judgment of Small Claims Court Deputy Judge Latimer dated May 7, 2020 as well from the costs decision of November 18, 2020. This motion highlights the importance of consulting and complying with Notices to the Profession posted on the Superior Court of Justice website, and monitoring changes to the Notices to the Profession as the pandemic progresses.
[2] So was terminated from Go Fleet in April 2018 and commenced an action in Small Claims Court for wrongful dismissal in July 2018. The Deputy Judge issued his merits judgment on May 7, 2020 requiring Go Fleet to pay damages for unpaid bonuses and commissions owed under the employment contract; damages equivalent to 3.5 months’ notice for a without cause termination due to a restructuring; and punitive damages. Although damages owing exceeded $25,000.00, because of the Small Claims Court monetary limits the award was for $25,000.00. The Deputy Judge released his costs decision on November 18, 2020.
[3] The appeal period from the May 7, 2020 costs decision would normally expire June 7, 2020. However, limitation periods and other statutory periods within which steps were required to be taken were suspended by O.Reg. 73/20, Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, from March 16, 2020 until the repeal of the Regulation on September 14, 2020. The appeal period thus expired October 14, 2020, thirty days after the Regulation was repealed.
[4] On December 1, 2020 the respondent wrote requesting payment of damages and costs. In response the appellant’s paralegal indicated that the appellant intended to appeal and provided a draft notice of appeal. The appellant did not serve and file the notice of appeal until December 21, 2020.
[5] The notice of appeal refers only to an appeal from the May 7, 2020 merits decision. It does not refer to the November costs decision and does not seek leave to appeal the costs decision. Indeed, the notice of appeal states that no leave is required. The notice of appeal did not seek to extend time for filing the notice of appeal although it was clearly served and filed after the expiry of the 30-day appeal period from either decision.
[6] On December 22 the respondent wrote to the court objecting to the filing of the notice of appeal on the grounds that it was out of time. On January 8 the appellant wrote to the court with a notice of motion requesting an extension of time to appeal the November 18, 2020 (costs) decision, with no mention of the May 7, 2020 merits decision. As has become apparent, the theory of the appellant seems to be that a reference to the November costs decision includes the May merits decision and vice versa, since the factum referred to a proposed appeal from both decisions.
[7] In a February 3, 2021 triage case conference Justice Corbett ordered the appellant to file all motion materials required for a motion to extend time to appeal by February 8, 2021; the respondent by February 24; and the appellant’s reply materials by March 5. The triage judge specifically directed that the parties provide their motion materials to the court by uploading them to CaseLines by March 5, 2021. The appellant failed to comply with the triage judge’s direction.
[8] The appellant never served or filed a motion record. On February 8, the deadline for filing all motion materials upon which it intended to rely, the appellant served and filed only an affidavit by the paralegal/law clerk in the office of the appellant’s solicitor. This affidavit did not contain a notice of motion or even the decisions appealed from. The appellant filed nothing in Caselines until March 8, after the deadline. Indeed, the appellant did not serve and file its factum until March 8, after it had received all the respondent’s materials.
[9] After the motion, court staff located a Notice of Motion that was not in the CaseFiles file on the motion. I directed court staff to write to the parties requesting clarification of materials filed by the appellant with a response by March 18. Of note, only respondent’s counsel replied to the Court’s direction; the appellant never responded by e-mail although it uploaded some materials into CaseLines without responding directly to the court’s inquiries as to what steps the appellant had taken to perfect the appeal. There is no evidence before me that the appellant has taken any steps to perfect the appeal.
ANALYSIS
[10] The test on a motion to extend time for filing a notice of appeal is well-settled. As stated in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, the overarching principle is whether the justice of the case requires that an extension be given. The court is to take into account all relevant considerations, including:
(a) Whether the moving party formed a bona fide intention to appeal within the appeal period.
(b) The length of, and explanation for, the delay in filing.
(c) Any prejudice to the responding party caused, perpetuated or exacerbated by the delay; and
(d) The merits of the proposed appeal.
[11] When determining whether the justice of the case warrants an extension, the court must consider and balance these factors as well as any others that may be relevant.
Intention to Appeal
[12] I find that the respondent did not form an intention to appeal before expiry of the appeal period. The appeal period for the May 7 merits decision expired on October 14, 2020. From the date of the decision to the expiry of the appeal period was over five months. From the expiry of the appeal period to the date the appeal was commenced was over two months.
[13] Go Fleet filed an affidavit from Mr. Timothy Ellies, a paralegal/law clerk in the office of the appellant’s counsel, Ms. Gloria Imchin. The paralegal represented Go Fleet at the Small Claims Court trial. The paralegal’s affidavit states that Go Fleet did not form the intention to appeal until after the Deputy Judge issued the costs decision on November 18, 2020, meaning it did not form the requisite intent before October 14, 2020.
[14] This case is like Joubarne v. Kellam, 2018 ONSC 3997 (Div.Ct.). Justice Ryan-Bell in Joubarne held that a costs judgment and merit judgment are separately appealable, and there is no intention to appeal during the appeal period where the moving party formed an intention only after the release of the costs decision: see paras. 8 to 10.
Length of Delay and Explanation
[15] Given the length of the delay, the explanations offered are inadequate.
(a) Uncertainty as to Appeal Period for Merits and Costs Decision
[16] The appellant argues, relying on the 2003 Court of Appeal decision in Byers v. Pentex Print Master, 2003 42272 (ON CA), 62 O.R. (3d) 647 (C.A.), that there is some confusion as to when the appeal period begins to run when a merits decision is separately issued from a costs decision. For counsel or a paralegal to argue that there remains confusion in 2021 is simply not acceptable. Byers made it crystal clear, in 2003, that a merits judgment and a costs judgment are separate appealable judgments. This is reflected in the Rules of Civil Procedure. For the merits judgment, the 30-day period under rule 61.04(1) in which to serve a notice of appeal commences from the date of the judgment on the substantive merits.
[17] Leave is required for appeal from costs judgments, even when joined with an appeal as of right (see Courts of Justice Act, R.S.O. 1990, c. C.43, section 133(b), and Rule 61.03 (7)). If costs are appealed as part of the appeal of the merits of the order, the request for leave to appeal should be included in the notice of appeal or in a supplementary notice of appeal (Rule 61.03(7)). The notice of appeal states only that the appellant appeals from the May 7, 2020 decision, makes no reference to costs, and does not seek leave to appeal costs.
(b) Confusion Caused by the Pandemic and Court Staff Regarding Divisional Court Filing
[18] Go Fleet attributes the delay in serving the notice of appeal to misdirection and miscommunication with court staff regarding filing procedures, the wording of the Notice to Profession – Divisional Court (June 29, 2020), and “the stated inability of the Brampton Court to accept filing of the required pleadings.”
[19] The affidavit evidence of alleged communications with court staff is unreliable hearsay given the complete lack of detail: the paralegal does not set out the dates of alleged discussions, the identity of court staff, nor the specific discussions other than broad statements that the Brampton Registry was not accepting new filings.
[20] However, the Notice to Profession – Divisional Court applied to this appeal as of June 29, 2020. The court expects counsel, paralegals and self-represented parties to be aware of, and to comply with, all Notices to the Profession as of the date they are issued. There is no evidence that Go Fleet’s counsel or paralegal took any steps to comply with the June 29 Notice to Profession until December 18, 2020.
[21] The June 29 Notice to Profession clearly advised that Divisional Court would continue to hear matters remotely. Section D.1 is entitled “Provincewide Protocol applies to all Divisional Court matters.” It sets out “the practice to be observed to schedule a matter in Divisional Court anywhere in Ontario.” On its face, the June 29 Notice to Profession applied to Brampton Divisional Court matters as of June 29. The Notice contains clear directions that matters were to be scheduled in accordance with the Notice and provided a dedicated Divisional Court e-mail address for scheduling requests and directions regarding electronic filing. The first time the respondent’s counsel used the dedicated e-mail address was December 18; Divisional Court staff responded within the hour.
[22] The Divisional Court has heard judicial reviews, appeals and motions throughout the pandemic. Yet on December 1, 2020, in response to a demand for payment of the judgment made by the respondent, the affiant paralegal/law clerk wrote to counsel for Mr. So:
GoFleet's Lawyer Gloria Ichim has asked that I send you this Draft of the Notice to Appeal. She has stated that she is just waiting for the Divisional Courts to open to file the Notice to Appeal.
[23] On December 14, Ms. Imchim wrote that the “Appeal Pleadings” were ready, and “the filing of same has been awaiting both the recently provided cost decision as well as the Divisional Court's ability to accept Appeals given the ongoing pandemic.” She stated that “despite numerous follow-ups with the Court the previously prepared pleadings could not and cannot be filed…” She referred to section D.5 of the June 29 Notice to Profession, which states that during the suspension of normal Court operations, “no documents will be issued by the Divisional Court or are to be filed with the Court except in accordance with this protocol or in accordance with a direction from one of the Divisional Court Administrative Judges.” Yet it is clear from the affidavit that Ms. Imchim’s office did not seek to follow the protocol or seek a direction from a Divisional Court Administrative Judge until December 18, 2020.
[24] In stating that the Divisional Court was not open, and not accepting filings of notices of appeal, Ms. Imchim was misrepresenting the June 29, 2020 Notice to Profession and the practice of the Divisional Court from June 29, 2020 onwards. The court has seen numerous self-represented litigants properly schedule matters and file documents in accordance with the June 29 Notice to Profession.
[25] Counsel and the paralegal failed to follow the pandemic Notice to Profession and then sought to blame the court or court staff improperly for their own mistakes. Clients hire paralegals and lawyers to receive advice that is compliant with the law and Rules governing court processes. Providing proper advice to clients is particularly important with respect to limitation periods and appeal periods. Counsel and paralegals cannot rely on administrative court staff to provide legal advice with respect to limitation periods/appeal periods. Where a litigant is represented by counsel or a paralegal, reliance on vague alleged assertions of Court staff will not serve as an excuse for delay regarding the correct procedure for timing and filing of appeal documents: Joubarne v. Kellam, 2018 ONSC 3997 (Div.Ct.) at para. 17. Given the impact of the pandemic, it is critical that lawyers and paralegals follow the Notices to Profession, particularly since they are constantly being updated as the pandemic continues.
Prejudice
[26] Go Fleet was entitled to an appeal as of right. The issue is whether the delay associated with the filing of the notice of appeal caused prejudice to Mr. So. It has been more than ten months since the award of damages, and the appellants have done little other than draft a notice of appeal. The pandemic extended certain statutory deadlines; here, it seems to have been taken as a license for appellants to do nothing. For example, there is no evidence that transcripts were ordered. In any event, there is an additional two months of delay beyond the pandemic extension.
[27] Appeal periods are meant to be final and represent a time of closure to allow litigants to move on with their lives. Small Claims Court proceedings are meant to be expeditious, and appellants must act expeditiously on appeal. Mr. So has been waiting 10 months since judgment, and given the delay by the respondents, will be waiting significantly longer before the appeal can be heard. He has given evidence of pandemic-related job loss, and financial need. Every step taken by the appellants has been prompted by the respondent’s counsel, causing Mr. So to incur additional costs. The appellant did not even bother to file a motion record for this motion despite the triage judge’s direction; the respondent was forced to incur the costs of preparing the motion record. I find prejudice associated with the delay by the appellants at all significant junctures.
Merits
[28] Where there is a right of appeal, the question is “whether there is “so little merit in the proposed appeal that the appellant should be denied [his] important right of appeal”: Duca Community Credit Union Ltd. v. Giovannoli (2001), 2001 24017 (ON CA), 142 O.A.C. 146 (C.A.), at para. 14. This case, however, is like 1250264 Ontario Inc. v. Pet Valu Canada Inc, 2015 ONCA 5, where Pardu J.A. held at para. 7:
However, I am unable to find any scintilla suggesting that the appeal has merit. The affidavit filed in support of the motion to extend time is silent on the issue of the merits. The notice of appeal is so general that I am unable to construct any basis for an arguable appeal from the motion judge’s factual findings. Very little would be required to show that there is some basis for an appeal in these circumstances, but I can find nothing.
[29] Here, the notice of appeal consists almost entirely of bald allegations about the misapprehension of evidence and findings of fact, while misrepresenting the Deputy Judge’s decision. It is impossible for the appeal court to understand the basis of the appeal. For example, the notice of appeal asserts that the Deputy Judge “erred in misapprehending the facts and evidence presented,” and “erred in presuming facts not in evidence.” The notice of appeal is so vague as to be incomprehensible, even when read together with the reasons and the supporting affidavit. The affidavit merely states that both the paralegal, as representative of the appellant at the trial of the matter, and Ms. Ichim, “believe that the Appeal filed herein has merit.”
[30] Because it is impossible to discern any merit based on a review of the notice of appeal and the supporting affidavit, I considered the factum and oral submissions of the appellant and respondent. I largely agree with the respondent’s submissions.
[31] The Deputy Judge’s decision is 22 pages long. He made very thorough findings of fact based on evidence, set out his reasons on credibility clearly, and applied well-settled law and legal principles to his findings of fact. Most of the argument relates to bald assertions about factual conclusions, assessments of credibility, or applications of well-established legal principles to the facts, all of which will be entitled to a high degree of deference. There is nothing in the material before me which undermines the Deputy Judge’s findings of fact, identification of relevant law, or application of the law and legal principles.
[32] I find that the appeal is devoid of merit. The moving party’s attack on the Deputy Judge’s decision does not articulate any arguable, reversible error.
The Justice of the Case
[33] This is an umbrella factor that encompasses fairness, balance, and a contextual consideration of other relevant factors. Mr. So commenced a Small Claims Court proceeding, compromising the value of his claim, in order to receive expeditious justice. The appeal that could have been finally disposed of by now will not even be perfected in a year. In all the circumstances, the interests of justice require that the motion to extend time be dismissed.
[34] While the appellant had a right to appeal, the appellant did not form an intention to appeal within the appeal period. Counsel cites “confusion” about whether merits and costs decisions are separately appealable to explain the delay, although that issue has been clear for 18 years. The appellant’s paralegal and counsel seek to blame court staff and the pandemic for missing the deadline by over two months, even after receiving over three months of additional time by virtue of the pandemic shifting of appeal periods. The paralegal and counsel did not follow the June 29 Notice to Profession – Divisional Court.
[35] In any event, counsel drafted a notice of appeal which does not even seek leave to appeal the November costs decision, but only appeals the May 2020 merits decision. When the notice of appeal was filed in December, out of time, counsel did not seek leave to extend time. Rather, it was only after the respondent’s counsel objected to the filing of the notice of appeal that the appellant sought to schedule the motion. Counsel have never sought leave to appeal the costs decision. As described above, I have found prejudice to the respondent due to the delay, and that the appeal lacks merit.
[36] As described above, the appellant failed to comply with the timeline established by the triage judge, again demonstrating a pattern of delay, and filed deficient materials, increasing the cost burden on the respondent.
[37] In all these circumstances, the justice of the case does not require an extension.
Disposition of Motion
[38] For these reasons, the motion to extend time to file the notice of appeal is dismissed.
[39] The appellant is to pay costs of $2,000.00 inclusive of HST and disbursements as requested by the respondent, within 15 days, an amount which I find is proportionate, fair, and reasonable in the circumstances.
Kristjanson J.
Date of Release: March 23, 2021
CITATION: Go Fleet v. So, 2021 ONSC 2199
DIVISIONAL COURT FILE NO: 651/20 DATE: 20210323
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Kristjanson J.
BETWEEN:
Go Fleet Appellant/Moving Party
– and –
Kevin So Respondent
ENDORSEMENT
Date of Release: March 23, 2021