



COURT OF APPEAL FOR ONTARIO

CITATION: Machado v. Ontario Hockey Association, 2019 ONCA
    210

DATE: 20190318

DOCKET: M49952 (M49657)

Feldman, Hourigan and Huscroft JJ.A.

BETWEEN

Joe Machado and Paul Williamson

Moving Parties (Plaintiffs)

and

Ontario Hockey Association, Bradley Grant,
    William Markle, Karen Phibbs, Brent Ladds, Leo Lostracco, John Kopinak, Dick
    Woods, John Kastner, Wayne Schnable, Bill Stobbs, Trevor Tinney, John Simmons,
    Rick Richardson, Larry Clarke, John Gibbons, Bruce Schlitt, Tom Strauch, Gary
    Moroney, Marc Ellis, Marc Mercier, Marty Savoy, Bill Billington, Paul Lake,
    Lloyd Parkhouse, Danny Gibson, Jeff Beatty, Mark Davies, Arnie Lawlor, Perry
    Bowles, Ontario Hockey Federation, Phillip McKee, Tony Foresi, Hockey Canada,
    Tom Renny and Scott Smith

Respondents (Defendants)

Theodore P. Charney, for the moving parties

Matthew Karabus, for the respondents

Heard: March 14, 2019

REASONS FOR DECISION

[1]

The moving parties commenced an action in
    2017, claiming damages against the respondents, who consist of corporate bodies
    responsible for administering junior level hockey in Ontario and various
    current and former officers and directors. The statement of claim designated
    Mr. Machado as the representative for both himself and Mr. Williamson.

[2]

After the statement of claim was issued,
    the respondents requested an extension of time to file a defence and
    confirmation that they would not be noted in default. Mr. Machado confirmed in
    writing that he would not note any of the respondents in default. Nonetheless,
    one day after the expiry of the time to deliver a defence, the respondents were
    all noted in default.

[3]

On January 11, 2018, the respondents
    brought a motion to set aside the noting in default, which was granted by the
    motion judge. During argument, the motion judge observed that Mr. Machado was
    not a lawyer and could not represent Mr. Williamson. Mr. Machado advised that
    both of the moving parties were self-represented. He requested two weeks to
    amend the statement of claim regarding the issue of representation. The motion
    judge granted the moving parties approximately seven weeks to make the
    necessary amendment. She also ordered them to pay the respondents $5,000 for
    the costs of the motion.

[4]

The moving parties paid the costs but
    otherwise failed to comply with the order. On March 1, 2018, Mr. Machado wrote
    to counsel for the respondents advising that on the advice of counsel, he and
    Mr. Williamson had decided to hold off on further action as there likely would
    be additional amendments to their statement of claim.

[5]

The respondents moved to dismiss the claim based on the breach of the
    January 11, 2018 order. The day before the return of the motion, Mr. Machado
    contacted counsel for the respondents requesting an adjournment so that the
    moving parties could pursue the retainer of counsel. Counsel for the
    respondents refused the request. The moving parties did not attend the hearing
    on March 28, 2018. The motion judge granted the respondents motion and
    dismissed the claim with prejudice, and ordered the moving parties to pay the
    costs of the action in the amount of $83,937.82.

[6]

On July 19, 2018, after the respondents
    sought to enforce the costs award, the moving parties retained counsel to bring
    a motion in this court for an extension of time to appeal the March 28, 2018
    order.

[7]

The chambers judge dismissed the motion
    for an extension of time to appeal, concluding that the justice of the case did
    not warrant an extension. She found that the applicants did not form a
bona
    fide
intention to appeal within the
    relevant time period and that their explanation for the delay was unpersuasive.
    While acknowledging that there was no evidence of prejudice arising from the
    delay to the respondents, the chambers judge noted that both of the moving
    parties admitted on cross-examination that they chose not to comply with the
    January 11, 2018 order. The chambers judge further found that the merits of the
    appeal did not favour the moving parties.

[8]

On this motion to review the order of the
    chambers judge, the moving parties seek to set aside that order and obtain an
    extension of time for the notice of appeal to be filed. We decline to grant
    that relief.

[9]

A panel review of a chambers judges decision is not a
de
    novo
determination. Where the chambers judge has made a
    discretionary decision, the decision is entitled to deference and the reviewing
    panel will not interfere absent legal error or misapprehension of material
    evidence:

Yaiguaje v. Chevron Corporation
,
    2017 ONCA 827,
138 OR (3d) 1,
at para.
    20.

[10]

We see no factual or legal error in the chambers judges
    analysis. The moving parties adduced no credible evidence of a timely intention
    to appeal. It is clear, as found by the chambers judge, that the motivating
    factor behind the moving parties bringing the motion for an extension of time
    was to avoid enforcement of the costs order against them, which occurred well
    after the time limit to appeal had expired. The moving parties met with their
    current counsel on June 22, 2018 and would presumably have been advised that
    time was of the essence in seeking an order for an extension of time to appeal.
    Despite that meeting, the moving parties did not retain counsel or communicate with
    responding counsel a desire to bring the motion for an extension of time to
    appeal until after they were informed by counsel for the respondents that the
    respondents were taking steps to enforce the costs award.

[11]

We are also of the view that the proposed appeal is not
    meritorious. The moving parties made deliberate choices both not to comply with
    the order of January 11, 2018 to amend the statement of claim and not to attend
    court on March 28, 2018. The breach that led to the dismissal order was not
    innocuous. Rather, as found by the motion judge and accepted by the chambers
    judge, the moving parties flagrantly, intentionally, and knowingly breached
    the January 11, 2018
o
rder. This finding was amply supported by the evidence
    and would act as a substantial bar to re-litigating the case regardless of
    whether the dismissal was made with prejudice.

[12]

Further, the chambers judge also did
    not err in concluding that the justice of the case did not merit the granting
    of an extension of time to appeal. When a litigant seeks an indulgence, it is
    appropriate to consider whether the party has respected court orders and the
    court process. In this case, the moving parties chose to litigate on their own
    schedule, without regard to court orders or the dictates of the
Rules
    of Civil Procedure
.

[13]

The
    motion is dismissed. The moving parties shall pay the respondents their costs
    of the motion in the agreed upon all-inclusive sum of $2,500.

K. Feldman J.A.

C.W. Hourigan J.A.

Grant Huscroft J.A.


