Superior Court of Justice – Ontario

Court File No.: CV-20-84669
Date: 2025/06/12

RE: Simms et al, Plaintiffs
-and-
Mann Lawyers LLP, Defendant

Before: Justice Flaherty

Counsel:
Self-Represented Plaintiffs
Scott McLean and Colton Allen (articling student), for the Defendant
Kathleen Wright, for the Defendant

Heard: In Writing

Endorsement

Introduction

[1] This is a motion to oppose the confirmation of a certificate of an assessment officer. In practical terms, it is an appeal of the decision assessing the applicant’s costs at $17,967.59. At this stage of the proceedings, the only issue before me is whether the motion should be dismissed as untimely.

[2] The assessment officer issued a report on January 9, 2023. Rule 54.09(1) of the Rules of Civil Procedure (“Rules”) states that the report of the assessment officer is confirmed and becomes a judgment of the court unless a motion to oppose confirmation is brought within 15 days after the opposing party is served with the signed certificate.

[3] In this case, Mr. Simms brought a motion to oppose confirmation of the certificate over two years after he was served with the signed certificate. Under Rule 3.02 of the Rules, the court may extend the time for the applicant’s motion on “such terms as are just.” Mr. Simms submits that it is in the interest of justice to extend the time for his motion.

[4] For the reasons that follow, the motion is untimely and it is dismissed. The interests of justice would not be served by extending the time to deliver the notice of appeal.

[5] This matter was heard on April 24, 2025. The respondent did not provide responding material or any case law in advance of the hearing, although counsel for the respondent attended and made oral submissions. During his submissions, counsel for the respondent relied on Moore v. John A. Annen Barrister Professional Corporation, 2017 ONSC 7720 (“Moore”). The court took a brief recess so that Mr. Simms, who is self-represented, could review and comment on this case. When court resumed, Mr. Simms asked for an adjournment and requested additional time to consult legal counsel.

[6] Mr. Simms was invited to provide brief written submissions regarding the Moore case. In rendering this decision, I have considered Mr. Simms’ written submissions. In the circumstances, it was not necessary to seek additional submissions from the respondent.

Analysis

[7] A motion to oppose confirmation is treated as an appeal: Moore v. John A. Annen Barrister Professional Corporation, 2017 ONSC 7720, para. 11. To obtain an order extending the time to appeal, the appellant must, generally, satisfy the court that: he maintained a firm intention from the beginning to appeal; that the failure to observe the time limit is reasonably explained; and that the “justice of the case” requires an extension, having regard to the merits of the appeal and any prejudice to the responding party: Duca Community Credit Union Limited v. Giovannoli, para. 11.

Intention to Appeal

[8] The applicant is self-represented and there is no evidence before me about when he formed the intention to appeal. Even assuming (without finding) that he intended to appeal from the beginning, I would not grant the extension of time. As discussed below, the other factors militate against an extension of time.

Delay

[9] The delay is very lengthy and it has not been adequately explained.

[10] Although the Rules provide for a motion within 15 days, the applicant waited over two years to pursue the matter. Mr. Simms stated that he did not bring the motion sooner because he and his son were dealing with several health issues, including in relation to Covid-19, ongoing chronic back pain, and dental surgeries. They were also engaged in complaint processes involving certain health care providers.

[11] I do not wish to diminish the hardship the applicant and his son have experienced. However, it is significant that Mr. Simms was able to engage in other legal proceedings during the relevant time. This included three separate complaints against health professionals, two of which were appealed to the Health Professionals Appeal and Review Board. Mr. Simms explained that he pursued those matters before bringing this motion because it was in the public interest to do so, to prevent others from having similar experiences with their health care providers.

[12] Mr. Simms decided to prioritize other legal proceedings. That is not a basis to grant his request for an extension of time. Moreover, Mr. Simms has not established that his circumstances would reasonably have prevented him from bringing a timely motion.

[13] In early January of 2023, Mr. Simms was able to attend and participate in the assessment proceeding. By that time, he had already filed three complaints against health professionals; these were initiated in January 2020, November 2021, and February 2022. By January 2023, the applicant’s other matters were already under way. Neither they, nor his family’s health issues, prevented him from participating in the assessment proceeding in early January 2023. It is not clear that these factors would have prevented him from bringing a timely motion, 15 days later.

Merits of the Appeal

[14] In considering whether the justice of the case requires an extension of time, the issue is not whether the appeal will succeed, but whether the appeal has so little merit that the court could reasonably deny the important right of appeal: Liu v. Chan, 2024 ONCA 699, para. 30.

[15] In this case, Mr. Simms asks the court to conduct a new assessment because the assessor erred and failed to take his affidavit evidence into account. He submits that some of the legal costs incurred were unnecessary.

[16] The legal costs at issue relate to an application that was heard in 2021, appointing Martyn Simms as guardian of property and personal care for his son, Kevin: Simms v. Simms and P.G.T., 2021 ONSC 2855. According to Mr. Simms, it was unnecessary to seek guardianship in 2021 because he had already been appointed the trustee for his son’s personal care and property. In this respect, he relies on a 2017 decision of Justice Hackland: Simms v. Simms, 2017 ONSC 6624.

[17] The 2017 decision appointed a solicitor as special trustee for a Henson trust that had been established for Kevin. In his reasons, Justice Hackland commented that Mr. Simms was Kevin’s trustee for his personal care and property. Notably, however, Justice Hackland did not order the appointment of Mr. Simms as Kevin’s guardian or trustee. That was not the legal issue before him. Mr. Simms presented no other information to show he had been appointed Kevin’s guardian or trustee before the 2021 proceedings.

[18] Having regard to the merits of the appeal, I am not satisfied that an extension of time is appropriate in this case. The comment in the 2017 decision does not amount to appointing Mr. Simms as guardian or trustee for Kevin. There was no order to that effect, nor was this the purpose of the 2017 proceeding.

[19] In my view, the ground of appeal is without merit. There is no basis to conclude that the proceeding in 2021 was unnecessary or that the assessment officer erred in failing to reach that conclusion.

Prejudice to the Respondent

[20] At this stage, there is no evidence of prejudice to the respondent. I note, however, that where the Rules have a 15-day time limit, a more than 2-year delay is inconsistent with the principle of finality in litigation. The respondent was not notified of Mr. Simms’ motion until April 2025.

Disposition

[21] The motion is dismissed. Should the parties be unable to resolve the issue of costs for this motion, the respondent may deliver written submissions on costs of up to 2 pages (excluding any costs outline or offer to settle) within 15 days, and Mr. Simms may deliver responding costs submissions on the same terms within a further 15 days. Reply submissions shall not be delivered without leave.

Justice Flaherty
Date: June 12, 2025