Craig v. Riocan Real Estate Investment Trust CITATION: 2015 ONSC 307

COURT FILE NO.: 9851/08

DATE: 2015-01-16

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Christine Craig and Caroline Bilotta, plaintiffs (moving)

AND: Riocan Real Estate Investment Trust, 1623415 Ontario Limited

AND: Elkin Injury Law (responding)

BEFORE: Mr Justice Ramsay

COUNSEL: Ms. Leigh Harrison-Wilson for the moving party

Mr R. Swart and Mr G. Akilie for Elkin, responding

HEARD: 2015-01-14 at Welland

ENDORSEMENT

[1] The plaintiff moved for an extension of time within which to apply for leave to appeal the order of Tucker J. dated November 19, 2014. That order settled the terms of a previous order of Maddalena J., froze some $41,000 or so of settlement funds negotiated for the plaintiffs by their new lawyer, Falconieri Munro Tucci LLP (“Falconieri Munro”), directed the assessment of fees to proceed, and placed a charge on the settlement funds in the amount of the assessed fees. The charge secures money owed to the plaintiff’s former lawyers, Elkin Injury Law (“Elkin”), for fees. I dismissed the motion in open court with reasons to follow. These are they.

[2] The test on a motion to extend time is well-settled. See Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 (Gillese JA in chambers) and 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5 (Pardu JA in chambers). The overarching principle is whether the justice of the case requires that an extension be given. Each case depends on its own circumstances, but 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 relevant time period;

(b) the length of, and explanation for, the delay in filing;

(c) any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and

(d) the merits of the proposed appeal.

[3] The merits threshold is a very low one: Falus v. Martap Developments 87 Ltd., 2012 ONSC 5163 (Div. Ct, Lax J.) However, depending on the context, it seems that an extension can be denied even where there is an arguable, if dubious, appeal: see Bratti v. Wabco Standard Trane Inc., 1994 1261 (ON CA), [1994] O.J. No. 855 (Laskin JA in chambers).

[4] In the case at bar the delay is short and there is no prejudice, strictly speaking. However, there is no explanation for the delay and the proposed appeal has not a scintilla of merit. The conduct of the plaintiffs in delaying the assessment of Elkin’s account is another feature of the context which contributes to my decision that the justice of the case requires that the extension be denied.

[5] Neither plaintiff has filed an affidavit attesting to having had any intention to appeal before the expiry of the relevant period. To the contrary, their lawyer deposes that one of the plaintiffs, Ms Craig, was out of the country from November 23 to December 4, by which time the period had expired. Ms Craig left the country three days after Tucker J.’s ruling, which was given in open court. She could have talked to her lawyer before she left, or by telephone from abroad, wherever she was. Essentially, her explanation is that she did not form the intention because she did not form the intention. That is not really an explanation; it is simply a statement of the default. As to when the second plaintiff, Ms Bilotta, might have formed the intention to appeal, there is not a word in the materials. So neither plaintiff has an explanation for the delay.

[6] A brief review of the case is apt before discussing the merits of the proposed appeal. The plaintiffs sued the defendants for a slip and fall that occurred at the shopping mall owned by them. They hired Elkin to represent them. In November 2011 they discharged Elkin. In February 2012 Elkin delivered an account for work done on the file in the approximate amount of $41,000. Elkin transferred its file to the plaintiffs’ new lawyer, Falconieri Munro Tucci LLP. In return, Falconieri Munro undertook to protect Elkin’s account, subject to the clients’ right to an assessment. In April 2012 the plaintiffs moved for an assessment.

[7] The assessment was scheduled for January 2014. On January 17, 2014 the assessor adjourned the assessment sine die to await the disposition of the slip and fall action. The next day the plaintiffs, through Falconeri Munro, sued Elkin for solicitor’s negligence.

[8] The slip and fall action was settled in August 2014. Neither the plaintiffs nor Falconeri Munro informed Elkin. On October 1, 2014 Elkin moved for a charging order on the settlement funds to secure their account. Maddalena J. adjourned the motion on consent to November 19, with directions requiring Falconieri Munro not to disburse the settlement funds in the mean time. Falconeri Munro did not respond to Elkin’s request for approval of a draft of Maddalena J.’s order. On November 19, 2014 Elkin also moved to settle the order. The motions came on before Tucker J.

[9] Tucker J. settled the order of Maddalena J., made an order requiring Falconieri Munro not to disburse the settlement funds pending the assessment of Elkin’s fees, directed the assessment to proceed forthwith, and ordered a charge on the funds for the benefit of Elkin to the extent of the fees allowed by the assessor.

[10] The plaintiffs propose two grounds of appeal:

a. Tucker J. erred in making the charging order when the action for solicitor’s negligence is outstanding, and

b. She erred in directing the assessment to proceed.

[11] The Court of Appeal settled the first point against the plaintiffs in Hendy v. Wilson, [1999] O.J. NO. 4134.

[12] The second point is illusory. It is the plaintiffs who want an assessment and who filed a motion to have one done. No one is stopping them. They can hardly complain that they are being forced to go ahead with a proceeding that they brought. The assessment is being performed for their benefit. They can go ahead with it or waive it. It cannot be used to delay paying Elkin’s bill.

[13] Nor is it a concern that the assessment could lead to a duplication of evidence that will be called in the solicitor’s negligence action. The assessor will be concerned with the time spent by the lawyers, the work done, and the amounts charged therefor, and whether they were reasonable given the usual considerations. He will not be deciding whether Elkin performed their obligations in a competent manner or whether they overlooked relevant avenues of investigation. He will not be assessing damages.

[14] In any event, the plaintiffs have not produced Tucker J.’s reasons. They are not entitled to argue error without producing the reasons for the decision. I was told in oral argument that the reasons are not available for transcription. But they are. I got an audio recording of the oral ruling within hours of asking for it. It is perfectly audible and could have been transcribed if it had been ordered.

[15] There is no issue of any importance to anyone but the parties. There is no prospect of leave to appeal being granted, and no prospect of success on the appeal.

[16] Finally, the affidavit of Mr Elkin and the supporting documents show a pattern of stalling on the part of the plaintiffs and their lawyer, in the face of the lawyer’s undertaking to protect Elkin’s account. It is disturbing that Falconeri Munro did not advise Elkin in a timely way that the slip and fall had been settled, that they agreed to represent the plaintiffs on the solicitor’s negligence action in the face of their undertaking to protect the account and that they did not cooperate in settling Maddalena J.’s order. I doubt the bona fides of the proposed appeal. It strikes me as another stalling tactic. This, too, is a factor to be considered.

[17] Having considered these factors I decided that the justice of the case required the extension to be denied.

J.A. Ramsay J.

Date: 2015-01-16