ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CV-95-CQ-61553
Date: 20120321
Between:
JOHN A. HARRISON Plaintiff – and – JOEL SKAPINKER, HEIFETZ, KROZIER, & SCHELEW, and MCMILLAN, BINCH and PAUL E. MALLON and ROGER, SMITH, DICK & THOMSON Defendants – and – BORDEN LADNER GERVAIS and TIMOTHY BATES Third Parties
John Arthur Harrison, in person as self-represented
Christopher M. Moore, for the Defendants
Heard: March 12, 2012
B. P. O’marra j.
reasons for decision
Issue
[1] Should the Plaintiff’s appeal be dismissed for failure to comply with an order that the appeal record be filed by February 29, 2012?
History
[2] On March 1, 1995 the Plaintiff commenced an action against various lawyers and law firms who represented him in a 1985 action.
[3] On January 25, 2007 an arbitrator ruled that the 1985 action had no reasonable probability of success, and if it had succeeded damages would have only been $5,356.12.
[4] On March 2, 2007 the Plaintiff filed a Notice of Appeal in the Superior Court from the arbitrator’s ruling. The original return date was July 10, 2007.
[5] The appeal was later rescheduled for October 23 and 24, 2007. The agreed timetable required the Plaintiff to deliver his appeal materials by September 17, 2007.
[6] The Plaintiff sought further adjournments of the appeal since he sought publicly funded counsel. The Defendants opposed the adjournments.
[7] On October 22, 2007 the Plaintiff sought to adjourn the appeal set for October 23 and 24, 2007. The Plaintiff had not yet filed his appeal materials in accordance with the timetable. The parties were ordered to appear on November 26, 2007.
[8] On November 26, 2007 the appeal was rescheduled for March 16 and 17, 2008.
[9] On January 28, 2008 the parties appeared in Court as the Plaintiff sought to adjourn the dates set for March of 2008.
[10] On March 14, 2008 the parties appeared and the Plaintiff sought to adjourn the appeal. The Plaintiff had not filed the appeal materials as required. The Plaintiff was granted an adjournment to April 17 and 18, 2008.
[11] On April 14, 2008 the parties attended in Court as the Plaintiff again sought an adjournment. The appeal was adjourned to April 30, 2008 to set a date.
[12] On April 23, 2008 the Plaintiff served a Notice of Application for a Fisher Order to fund counsel.
[13] On April 30, 2008 the appeal was adjourned pending the disposition of the Fisher Application.
[14] On March 22, 2010 the Fisher Application was dismissed.
[15] On January 18, 2011 counsel for the Defendants advised the Plaintiff that there would be a motion to dismiss the appeal for delay.
[16] On February 18, 2011 the motion to dismiss for delay was scheduled for July 14, 2011. That motion was heard by Justice Perell on August 15, 2011 along with yet another request for an adjournment by the Plaintiff.
[17] The key points of the Endorsement of Justice Perell dated August 15, 2011 are as follows:
The Appellant sought a further adjournment as he needs time to hire lawyer.
The Appellant is self represented and has several physical handicaps.
Given the long history of the matter there must be closure one way or the other on the Appellant’s efforts to find legal representation. There must also be closure on the appeal.
The appropriate way to proceed is to set a date for the appeal that provides the Appellant a reasonable time to obtain counsel or to prepare to argue the appeal himself .
The Appellant suggested April 2012 would be reasonable time .
Appeal set for April 4, 2012. That date is peremptory as against the Appellant because of the age of the appeal and because he has already made efforts to obtain counsel.
The Court explained the significance of the new appeal date being peremptory and advised him that it is very unlikely the Court will allow any adjournments.
The Court emphasized that he should prepare himself to argue the appeal if he is unable to obtain a lawyer .
The Court further ordered that the Appellant or his lawyer must deliver their appeal record by February 29, 2012 failing which the Defendants may move without notice to have the appeal dismissed. The Court explained this to the Appellant .
[18] On February 29, 2012 the Appellant served an affidavit but did not serve and file an appeal record in compliance with Rule 62.01(7).
[19] The Affidavit contains 17 pages and 62 paragraphs. It is incomplete as paragraph 1, 2, and 4 refer to exhibits “A”, “B” and “C” but the exhibits are not attached. Paragraphs 29-34 inclusive, 36, 48 and 58 refer to exhibits which “will be provided” but are not attached to the affidavit.
[20] At Motions Scheduling Court on March 5, 2012 Justice Whitaker ordered that this motion, originally filed as a motion in writing, proceed by way of a hearing on March 12, 2012 and upon notice to the Appellant.
[21] The Appellant appeared in person before me on March 12, 2012. Christopher Moore appeared as counsel for the Defendants. The Appellant made the following submissions:
He continues to have significant health issues that make it difficult to complete the required materials in a timely way.
He is still self represented but requires “expert legal assistance” to prepare and present his appeal.
He “may” have the required materials available by April 4, 2012 (the date set for the hearing of the appeal).
“If I am going to do this myself I need more time”.
Analysis
[22] It is now 5 years since the appeal was filed. The Appellant has been granted several opposed adjournments to allow him to seek legal counsel and provide the required materials in a timely manner. April 4, 2012 will be the 4th date set for the hearing. The Appellant has failed to serve and file the required materials for each of the four hearing dates. A motion to dismiss for delay was dismissed on August 15, 2011 but the Appellant was told clearly by that Court that he must file the required materials by February 29, 2012 and be prepared to argue the appeal with or without counsel on April 4, 2012.
[23] The Appellant attended Court on March 12, 2012 and made his submissions in a very articulate fashion. He not only opposed the motion to dismiss but effectively sought a further adjournment without notice. Instead of filing an appeal record approximating the content required by the Rules he presented a sprawling 17-page affidavit. This document contains extensive details but also refers to exhibits either not attached or to be filed later.
[24] Where a party fails to comply with an interlocutory order the Court may dismiss the proceeding or make such other order as is just.
Rule 60.12.
[25] The motion to dismiss this appeal is not based on an isolated or technical breach of an interlocutory order. This articulate, self-represented litigant has been accorded extensive latitude by the Court in adjourning the filing date and hearing over the years. The Order of Justice Perell on August 15, 2011 allowed the Applicant six months to either retain counsel or be prepared to present the appeal himself. The peremptory nature of both the filing date and hearing was made crystal clear to the Applicant. Indeed, Justice Perell noted that the Applicant himself suggested that April of 2012 would be reasonable time to complete the filings (by February 29, 2012) and the hearing itself. The Appellant now effectively sees a further adjournment.
[26] There comes a time when a further delay in proceedings is entirely unacceptable. There is no indication that the Defendants have delayed this proceeding in any way. It would be contrary to the interests of justice to yet again postpone this matter or proceed on an entirely unsatisfactory record.
Result
[27] Appeal dismissed. I will receive brief written submissions as to costs within 21 days of the release of this endorsement.
B. P. O’Marra J.
Released: March 21, 2012
COURT FILE NO.: CV-95-CQ-61553
DATE: 20120321
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JOHN A. HARRISON Plaintiff – and – JOEL SKAPINKER, HEIFETZ, KROZIER, & SCHELEW, and MCMILLAN, BINCH and PAUL E. MALLON and ROGER, SMITH, DICK & THOMSON Defendants – and – BORDEN LADNER GERVAIS and TIMOTHY BATES Third Parties
REASONS FOR DECISION
B. P. O’Marra J.
Released: March 21, 2012