



COURT OF APPEAL FOR ONTARIO

CITATION: Laushway Law Office v. Simpson, 2013
    ONCA 317

DATE: 20130510

DOCKET: M42269 (C54158)

Laskin J.A. (In Chambers)

BETWEEN

Laushway Law
    Office,
    Barry D. Laushway

Solicitors
    (Respondents/Responding Parties)

and

Robert Burton Simpson

Client
    (Appellant/Moving Party)

Robert Burton Simpson, acting in person

John J. Cardill, for the responding parties

Heard: April 12, 2013 by teleconference

On appeal from the judgment of Justice Robert N. Beaudoin
    of the Superior Court of Justice, dated July 4, 2011 and on a motion to extend
    the time to perfect the appeal.

ENDORSEMENT

[1]

The moving party, Robert Simpson, asks for an order to further extend
    the time for perfecting his appeal from the judgment of Beaudoin J. dated July
    4, 2011.  He has already been granted two lengthy extensions, one by Lang J.A.
    and one by me.

A.

background

[2]

Simpson was injured in a car accident in 1997.  Eventually he retained
    Barry Laushway of the Laushway Law Office (LLO) to represent him.  Simpson and
    LLO entered into a contingency fee agreement under which LLO was to be paid
    legal fees equal to 30 per cent of any recovery.

[3]

In November 2007, Simpsons claim was settled at a pre-trial conference
    for $750,000 plus disbursements.  After some adjustments to settle the claims
    of ODSP and Ontario Works, Simpson received the net amount of $516,473.64, and
    LLO received a net fee of $138,456.24.  The fee has been paid, and subject to
    these proceedings, LLO has the funds.

[4]

Simpson then challenged the enforceability of the contingency fee
    agreement.  In November 2008, McLeod-Beliveau J. ordered a hearing of that
    issue.   Shortly after, Barry Laushway died.

[5]

Simpson did not initially proceed to a hearing.  Instead, in June 2009,
    he brought an application for a declaration that the contingency fee agreement
    was void.  Power J. dismissed the application on the condition that Simpson had
    the right to raise the enforceability of the agreement at a hearing as directed
    by McLeod-Beliveau J.

[6]

The hearing took place before Beaudoin J.  It began in February 2010, took
    seven days, and ended in December 2010.  Mr. Laushways evidence went in by
    affidavit.  Numerous other witnesses, including Simpson, gave oral testimony.  Beaudoin
    J. delivered lengthy reasons on July 4, 2011 (see 2011 ONSC 4155), in which he
    found that the contingency fee agreement was enforceable.  Alternatively, he
    would have upheld the amount claimed on a quantum meruit basis.

B.

the appeal

[7]

Simpson has appealed the judgment of Beaudoin J.  He is representing
    himself.  Although he is a trained lawyer, he has not practised for many
    years.

[8]

Simpson has had all of the transcripts necessary to perfect his appeal
    since March 21, 2012.  The parties originally agreed on a perfection date of
    May 22, 2012.  Shortly before that date, Simpson indicated that his ill health
    prevented him from meeting the May 22 deadline.  He sought an extension of
    time.

(a)

The extension granted by Lang J.A.

[9]

On June 20, 2012, Lang J.A. granted Simpson an extension of time to
    perfect his appeal until November 15, 2012.  In her endorsement, she noted:

As a result of the accident and perhaps other causes Simpson
    has health considerations that require accommodation.  He has filed material
    that he is able to focus for a few hours a day at intervals.

Although I have granted this lengthy extension of time, I
    observe that Mr. Simpson has a draft factum on the law that was prepared for
    him.  His primary effort will be to write the facts portion of the factum in a
    concise manner.

(b)

The extension granted by me

[10]

Simpson
    had still not perfected his appeal by November 15.  He sought a further
    adjournment.  On December 5, 2012, I extended the time for perfecting his
    appeal to March 11, 2013.  I added that if it was not perfected by that date
    then, subject to any further order of the court, it would be dismissed for
    delay.

(c)

This motion

[11]

Simpson
    did not comply with the March 11 deadline.  Instead, he has asked for yet another
    lengthy extension.  And he has coupled this request with requests that the
    court issue summons to two witnesses and that the Attorney General intervene on
    this appeal.  The two witnesses are his former work supervisor and an expert
    on the financial impact of the accident on his ESL business.  He asks for the
    Attorney Generals intervention on the issue of chronic pain.

C.

discussion

[12]

In
    deciding whether to extend the time for appealing, a motion judge typically
    takes into account the following five factors:

1.

Whether the appellant formed an intention to appeal within the relevant
    period;

2.       The length of the
    delay;

3.       The appellants
    explanation for the delay;

4.       The merits of the
    appeal; and

5.       Any prejudice to the
    respondent.

[13]

In
    taking into account these five factors, the overriding question is whether the justice
    of the case warrants an extension:  see
Issasi v. Rosenzweig
, 2011
    ONCA 112, at para. 4.  For reasons that I will discuss, I am not persuaded that
    a further extension is warranted.

(1)

Whether Simpson formed an intention to appeal within the relevant period

[14]

Simpson
    filed his notice of appeal on time.

(2)

The length of the delay

[15]

The
    delay has been lengthy.  Simpson has already received two long extensions. 
    Indeed, nearly a year has passed since he first agreed to perfect his appeal. 
    I accept that his health requires some accommodation, but as Lang J.A. noted
    last June, over 10 months ago, the law section of his factum has already been
    prepared.  Moreover, he has had no trouble in preparing lengthy affidavits and
    arguments in support of his various requests for further time.  I can only
    conclude that, for whatever reasons, he simply does not wish to perfect his
    appeal  he would rather keep it in a state of limbo than perfect it and go to
    a hearing.

(3)

The explanation for the delay

[16]

I
    am not persuaded that Simpson has satisfactorily explained his lengthy delay. 
    I have not been provided with any medical evidence that would support a further
    lengthy extension.  I give no weight to the request for the two summons or for
    the intervention of the Attorney General.  These are just delaying tactics. 
    The two witnesses could have testified before Beaudoin J. if their evidence had
    any relevance, and I have been given no reason why they did not do so.  The
    issue of chronic pain is a familiar issue to the courts.  It is hardly an issue
    that requires the intervention of the Attorney General.

(4)

The merits of the appeal

[17]

Simpson
    has not shown any merit in his proposed appeal.  The reasons of Beaudoin J. are
    thorough and appear to be well reasoned.  Although he found that the
    contingency fee agreement was enforceable, even if it was not enforceable, he
    also found that the fee received by LLO was fully justified on a quantum meruit
    basis.  Simpsons general and conclusory contentions at paragraph 8 of his
    notice of motion do not raise any arguable ground of appeal arising from
    Beaudoin J.s reasons.

(5)

Prejudice to the respondent

[18]

LLO
    would not be prejudiced by a further extension in the sense that it has already
    received its fee.  However, it is prejudiced in the sense that these
    proceedings continue to be outstanding and have not been brought to a timely
    conclusion.  Finality is an important value in our justice system.  When an
    appeal is not pursued with reasonable diligence, a respondent is justified in
    asking the court to dismiss the appeal for delay.  Simpson has had 13 and a
    half months to perfect his apepal since he received the transcripts of the
    hearing before Beaudoin J.  He has not done so despite two lengthy extensions
    of time.  He has not pursued his appeal with reasonable diligence. My previous
    endorsement gave him ample warning that he risked having his appeal dismissed
    if he did not perfect it.  The respondents interest in finality is a further
    reason why Simpson is not entitled to yet another extension.

[19]

For
    these reasons, the justice of the case does not warrant a further extension of
    time to perfect the appeal.  The motion is dismissed.  The parties may make
    written submissions on the costs of the motion.

John Laskin J.A.


