) ) MOLLY LICHTENSTEIN, BETTY HARRIS v. PEARL ZIMAN, 2013 ONSC 1432

CITATION : Lichtenstein v. Bathurst Towers Inc., 2013 ONSC 1432 DIVISIONAL COURT FILE NO.: 560/11 DATE: 20130307 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) MOLLY LICHTENSTEIN, BETTY HARRIS and PEARL ZIMAN Plaintiffs (Respondents in Appeal) – and – BATHURST TOWERS INC.

Defendant (Appellant) -and – BERNARD STEIN Third Party (Respondent in Appeal) )) )) )) )) )))))))))))) Dena Oberman , for the Plaintiffs (Respondents in Appeal) Catherine Ferrari , for the Defendant, Bathurst Towers Inc. ) ) ) HEARD at Toronto: March 7, 2013 MOLLOY J. (ORALLY) [ 1 ] Molly Lichtenstein is now 96 years old and is unwell. She was injured at the premises of Bathurst Towers Inc. on January 30, 2009 and sued for damages. The trial proceeded before Roberts J. sitting with a jury in October 2011. The jury found the defendant to be 100% responsible for the injury and awarded damages of $26,000.00.

Costs were dealt with by Roberts J. in November 2011. The judgment in favour of the plaintiff is dated November 1, 2011. [ 2 ] The defendant served a Notice of Appeal on December 1, 2011, which was within the 30 days specified by the Rules. [ 3 ] Counsel for the plaintiffs advised defence counsel on December 12, 2011, and on numerous occasions thereafter, that strict adherence to the Rules would be insisted upon due to the advanced age of the plaintiff, which was 95 at that time. [ 4 ] There were delays in obtaining transcripts, which were largely the fault of the court reporters. The transcripts were ordered

on December 28, 2011. Plaintiff’s counsel was proactive in contacting the court reporters at various points and urging completion of the transcripts. [ 5 ] On September 7, 2012, Mr. Jaeger, counsel for the defendant advised plaintiff’s counsel, Ms. Oberman, that he now had all of the transcripts. He filed a Certificate of Completion dated September 4, 2012. The plaintiff’s counsel confirmed that the time for perfecting the appeal would be November 5, 60 days from that date, and she would be holding him to that.

She had previously asked the Divisional Court to expedite the appeal as soon as it was perfected. [ 6 ] At some undefined time after September 6, defence counsel realized for the first time, that some portions of the required transcripts were missing, notably the closing addresses of counsel for the jury and an oral decision of Roberts J. relating to a non-suit motion by the third party.

No explanation is advanced for why this was not discovered earlier as with everything in this appeal, it appears the defendant dragged its feet delaying all of its filings until the last possible moment. [ 7 ] A new Certificate of Completion of Transcripts was issued on November 27. Unfortunately, when the court reporter filed the new Certificate, she failed to include both action numbers on the form. She included only the number from the third party claim, not the main action.

In any event, the Divisional Court issued a notice to defence counsel dated December 5, 2012, which was received by him on December 6, 2012, advising that the appeal would be dismissed for delay on December 28 unless perfected within 10 days of service of the notice. [ 8 ] Rule 61.13(2) provides: Where the appellant has not, (

a) filed a transcript of evidence within 60 days after the registrar receives notice that the evidence has been transcribed; or (

b) perfected the appeal within one year after filing the notice of appeal, the registrar may serve notice on the appellant that the appeal will be dismissed for delay unless it is perfected within 10 days after service of the notice. [ 9 ] In this case the Registrar had a certificate that the evidence had been transcribed on September 4, which would mean the Registrar’s notice could be sent 60 days after that – November 5, 2012. On November 27, a new certificate was filed, but it did not reference this action. However, there was still a basis for issuing the Registrar’s notice under 61.13(2)(

a) because more than one year had passed since the delivery of the notice of appeal on November 1, 2011. [ 10 ] The defendant’s counsel did not perfect the appeal by December 16 and did not seek an order extending the time. No acceptable explanation is offered for either delay. Defence counsel also did not perfect the appeal by December 28 although even if he had attempted to file this material on December 28, he would already have been out of time.

The Registrar issued an order dismissing the appeal on December 28, 2012. [ 11 ] The parties agree on the test to be applied to set aside the Registrar’s dismissal of the action. I have a discretion as to whether to set aside the dismissal.

In exercising that discretion I must take into account the following four factors: 1. whether there was a settled intent to appeal within the relevant period for appealing under the Rules; 2. the length of the delay and the explanation given for the delay; 3. whether there was any prejudice to the responding party; and, 4. the merits of the appeal. [ 12 ] It is common ground that the first test is met.

The defendants clearly intended to appeal within the time specified and in fact filed a notice of appeal on the 30 th day after the judgment. [ 13 ] With respect to the second factor – the total amount of delay from the date the transcripts were obtained is not excessive. Admittedly, it was the court reporter who made the error. However, time was important here due to the advanced age of the plaintiff and defence counsel did nothing to expedite this matter. Everything that was done by the defence was done at the last minute.

In my view, that is why he did not discover the error in the original court reporter’s certificate in September. [ 14 ] Defence counsel was also confused with respect to whether the deadline from the Registrar’s notice was December 16 or December 28. However, the notice is clear that the deadline for perfecting the appeal was December 16 and in any event, he missed both deadlines, December 16 and December 28.

This again, in my view, is because he left things until the very last minute knowing the terrible consequences delay may have had for this particular plaintiff and the notice from her counsel that no extensions would be granted. [ 15 ] That said, I accept that the failure to perfect the appeal in time was inadvertent. If all of the other factors had been met, I would probably grant this indulgence. However, there is real prejudice to the plaintiff here. She is now 96 years old and in poor health.

Delay here is, in a very real sense, most likely going to result in justice denied for this lady. [ 16 ] Finally, the onus is on the moving party to show there is merit to the appeal. There is absolutely nothing in the material filed by the defendant on this motion to address this issue other than the bald statement that there is merit to the appeal. This was a jury trial in which the defendant was found to be 100% liable for a slip and fall and in which modest damages were awarded. There is nothing before me from which I could conclude that there is any real merit to this appeal.

[ 17 ] In my view, the interests of justice in this case do not support granting an indulgence to the defendant at the expense of this vulnerable woman. [ 18 ] The motion is dismissed. [ 19 ] I have endorsed the Motion Record: “For oral reasons delivered today, this appeal is dismissed. Costs fixed at $10,000, payable to the plaintiff forthwith. Order to go in form of draft filed, which I have signed.” MOLLOY J. Date of Reasons for Judgment: March 7, 2013 Date of Release: March 12, 2013 CITATION : Lichtenstein v.

Bathurst Towers Inc., 2013 ONSC 1432 DIVISIONAL COURT FILE NO.: 560/11 DATE: 20130307 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY J. BETWEEN: MOLLY LICHTENSTEIN, BETTY HARRIS and PEARL ZIMAN Plaintiffs (Respondents in Appeal) – and – BATHURST TOWERS INC. Defendant (Appellant) -and – BERNARD STEIN Third Party (Respondent in Appeal) ORAL REASONS FOR JUDGMENT MOLLOY J. Date of Reasons for Judgment: March 7, 2013 Date of Release: March 12, 2013