SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

CITATION: Imona-Russel v. JD Ekpenyong, 2024 ONSC 1352

DIVISIONAL COURT FILE NO.: 728/23

DATE: 20240306

BETWEEN:

DR WILLIAM IMONA-RUSSEL, Applicant

AND:

JD EKPENYONG BARRISTER PROFESSIONAL CORPORATION, Respondent

BEFORE: Leiper J.

COUNSEL: Dr. William Imona-Russel, Appellant, self-represented and acting in person JD Ekpenyong Barrister Professional Corporation, Respondent, self-represented and acting in person

HEARD: In writing at Toronto, March 5, 2024

ENDORSEMENT

[1] On May 2, 2023, the applicant, Dr. William Imona-Russel served and filed a motion for an extension of time in which to bring a motion for leave to appeal the decision of Charney, J. of April 25, 2023 in Cobourg, Ontario.

[2] The applicant, who is self-represented, delivered his material to the incorrect office. On June 22, 2023, he sent his material to the Divisional Court office in Toronto for processing. Although his correspondence copied the presiding judge, he did not provide a copy to the respondent, JD Ekpenyong Barrister Professional Corporation.

[3] The applicant had moved before Charney, J. for default judgment against the respondent, his former lawyer. The applicant, who is incarcerated at the Warkworth Institution, alleged he had served the respondent by courier on February 16, 2023, and that the respondent filed no statement of defence or notice of intent to defend.

[4] The applicant served a notice of motion for default judgment by courier on the defendant on March 29, 2023.

[5] Charney, J. found that service of the originating process had not been made as required by the Rules of Civil Procedure.

[6] The applicant’s grounds of appeal are that the motion judge was biased in failing to consider the applicant’s mobility issues by virtue of being incarcerated, that his dignity has been injured by the decision, and the evidence shows that he did serve the respondent by courier.

[7] The applicant submits that the reasons for the delay include difficulties of arranging for service of material from inside Warkworth Institution and his error in sending the material to the incorrect court office.

[8] The respondent opposes the request for an extension of time. Mr. Ekpenyong, on behalf of the respondent, states that the appeal is without merit and the justice of the case does not favour an extension of time. If permitted to proceed, Mr. Ekpenyong would seek security for costs and an order declaring that the applicant is a vexatious litigant.

Analysis

[9] On a motion for leave to extend the time to bring a motion for leave to appeal, the court should consider:

(a) Whether the moving party formed an intention to appeal within the relevant period;

(b) The length of the delay and the explanation for it;

(c) The prejudice to the responding party;

(d) The merits of the appeal; and

(e) The governing principle of whether the justice of the case requires that an extension be given.

See: Van de Kerckhove v. Wagner, 2022 ONSC 5780 at paras 10-11; Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 554 at para 2.

[10] The presence or absence of merits of an appeal may be dispositive on a motion to extend time. Obtaining leave to appeal an interlocutory order requires meeting the test found in Rule 62.02(4), of the Rules of Civil Procedure, which requires that an appellant establish:

(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 desirable that leave to appeal be granted; or

(b) there appears to be 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.

[11] I accept from the correspondence filed that the applicant formed the intention to appeal the decision of Charney, J. within the requisite time period, and took steps, albeit to the wrong court address to seek leave to appeal that decision.

[12] However, in reviewing the endorsement which is procedural in nature and founded in uncontested facts: the manner of service of the motion for default judgment and the application of the Rules of Civil Procedure to those facts and the grounds for appeal, I find that there is no merit to the appeal. The applicant has cited no conflicting decisions. There is nothing in the applicant’s grounds to suggest that the case involves matters of such importance that a leave panel would grant leave. The grounds express the applicant’s dissatisfaction with the motion judge’s decision, but do not raise any issues on which I can find there are any reasons to doubt the correctness of the decision.

[13] On balance, I conclude that the justice of the case does not weigh in favour of granting the extension sought to seek leave to appeal the interlocutory decision of Charney, J.

[14] The motion for an extension of time is dismissed.

Leiper J.

Released: March 6, 2024