CITATION: Efthymiadis v. Universal Protection Service of Canada Corp., 2022 ONSC 6755
DIVISIONAL COURT FILE NO.: 520/22
DATE: 20221130
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: George Efthymiadis and Elizabeth Efthymiadis, Plaintiffs/Appellants/Moving Parties
AND:
Universal Protection Service of Canada Corporation, Tina Baldwin, Randy Smith, London Police Services Board, Former Police Chief Brad Duncan (Action dismissed against this Defendant), Constable Darrin Brown, Constable Monica Loureiro, Minto Properties Limited and Jan Hetherington, Defendants/Respondents
BEFORE: Nishikawa J.
COUNSEL: George Efthymiadis and Elizabeth Efthymiadis, in person
Inga B. Andriessen and Max Shin, for the Defendants/Respondents, Universal Protection Services of Canada, Tina Baldwin and Randy Smith
HEARD at Toronto: November 25, 2022 (by videoconference)
ENDORSEMENT
Overview and Procedural Background
[1] The Moving Parties, George Efthymiadis and Elizabeth Efthymiadis, bring a motion for an extension of time to file a notice of motion for leave to appeal the order of Rady J. dated March 2, 2022 (the “Order”).
[2] In the Order, the motion judge dismissed the Moving Parties’ request for leave to rely on two documents in support of their motion for summary judgment. The two documents were reports that had been provided by the Respondent, Universal Protection Service of Canada Corporation (the “Respondent”), in its response materials in a proceeding initiated by Ms. Efthymiadis before the Human Rights Tribunal of Ontario (“HRTO”). The motion judge found that the two reports were subject to the implied undertaking rule and held that the Moving Parties were precluded from relying on them in the civil proceeding by Rule 3.3 of the HRTO’s Rules of Procedure.
[3] The Moving Parties initially sought to appeal the Order to the Court of Appeal for Ontario. On July 26, 2022, the Court of Appeal quashed the appeal for lack of jurisdiction, because the Order was interlocutory: 2022 ONCA 554.
Analysis
[4] Rule 61.03(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that where leave to appeal to the Divisional Court is required, the notice of motion for leave must be served within 15 days of the making of the order from which leave to appeal is sought. Pursuant to Rule 3.02 of the Rules, the court may exercise its discretion to extend the time for service of a notice of motion for leave to appeal.
[5] The test that the moving party must meet for an extension of time to file a notice of appeal is well-settled. In deciding whether to exercise its discretion to grant an extension of time, the court will consider the following factors:
(a) Whether the Appellant formed an intention to appeal within the relevant period;
(b) The length of the delay and explanation for the delay;
(c) Any prejudice to the Respondent;
(d) The merits of the appeal; and
(e) Whether “the justice of the case” requires it.
Heliotrope Investment Corp. v. 1324789 Ontario Inc., 2021 ONCA 23, at para. 24.
[6] The Court of Appeal has further held that while courts consider different factors, the governing principle is whether the “justice of the case” requires than an extension be given: Heliotrope Investment, at para. 25.
[7] On a motion to extend the time to seek leave to appeal, the same test is applied. The court must consider the merits of the motion for leave to appeal, as opposed to the merits of the appeal itself: Samuels v. Canada (Attorney General), 2016 ONSC 6706, at para. 20.
[8] Rule 62.02(4) states that “leave to appeal from an interlocutory order shall not be granted unless”:
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the panel hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the panel hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted.
[9] The Respondents do not dispute that the Appellants formed an intention to appeal within the relevant period. Nor do they allege any prejudice arising from the delay. The Respondents, relying on Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 16, oppose the motion solely on the basis that the proposed appeal lacks merit.
[10] The Moving Parties submit that the two reports were provided by the Respondent with their Response to Ms. Efthymiadis’ Application to the HRTO, and that as a result, they are not documents obtained under the HRTO Rules of Procedure or documents that would fall under Rule 16 of those rules, which deals with disclosure. The Moving Parties argue that the two reports are documents filed with the HRTO, and not documents obtained through a discovery process. They rely on the open court principle to argue that, as documents filed with the HRTO, the reports are not protected by the implied undertaking.
[11] In my view, the Moving Parties’ proposed appeal is unlikely to satisfy either branch of the test for leave to appeal.
[12] The Moving Parties submit that the Order conflicts with the Court of Appeal’s decision in Sobeski v. Mamo, 2012 ONCA 560. In that case, however, the deemed undertaking was found not to apply because the documents were provided by a party to their own lawyer. That is different from the circumstances of this case, where the documents were provided by the Respondent.
[13] Similarly, I find that the Moving Parties are unlikely to be able to demonstrate that there is good reason to doubt the correctness of the Order. Rule 3.3 of the of the HRTO’s Rules of Procedure prohibits parties and their representatives from using “documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.” The motion judge’s endorsement provides detailed reasons to support her finding that the reports were obtained under the Rules and thus subject to the implied undertaking. The fact that the reports were attached to the Respondent’s Response does not take them outside the scope of Rule 3.3.
[14] In addition, the Order relates to a very specific and narrow circumstance. While the proposed appeal is important to the Moving Parties, it is unlikely that it would be found to be of such importance, beyond the interests of the parties, such that leave to appeal would be granted. Moreover, the implied undertaking rule is fundamental to protecting the privacy of parties in litigation: Tanner v. Clark (2003), 2003 41640 (ON CA), 63 O.R. (3d) 508 (C.A.). A party to litigation should not be at risk of having documents produced in discovery used by the other party for a different purpose. As a result, I find that the justice of the case does not support an extension of time to file a motion for leave to appeal.
Conclusion
[15] The motion for an extension of time to file the notice of motion for leave to appeal the Order is dismissed.
Costs
[16] The Respondents seek substantial indemnity costs of $11,378.65 on the basis that the proposed appeal lacked merit. I see no basis for awarding substantial indemnity costs.
[17] The Moving Parties shall pay costs of the motion to the Respondents, on a partial indemnity basis, which are fixed at $2,500.
“Nishikawa J.”
Date: November 30, 2022