



COURT OF APPEAL FOR ONTARIO

CITATION: Graff v. Network North Reporting
    and Mediation, 2020 ONCA 319

DATE: 20200527

DOCKET: M51025 (C64831)

Rouleau, van Rensburg and
    Roberts JJ.A.

BETWEEN

Marie Graff

Plaintiff (Appellant/Moving Party)

and

Network North Reporting and
    Mediation, Nadine Kuehnhold, Johnson
Insurance, Unifund Insurance, Dutton Brock LLP, Ryan St. Aubin, Kahler Personal
    Injury Law Firm Professional Corporation, Deborah J. Lewis,
Brennan Kahler, Longley Vickar, Louis Brent Vickar, Fox Psychological
    Services, Allan Walton, Dr. Valentin, Dr. Paula B. Williams
Medicine Professional Corporation and Dr. Paula Williams

Defendants (Respondents/Responding Parties)

Marie Graff, acting in person

Jay Stolberg, for the responding
    parties Network North Reporting and Mediation and Nadine Kuehnhold

Mark M. ODonnell, for the responding
    parties Johnson Inc. and Unifund Assurance Company

Visnja Jovanovic, for the responding
    parties Dutton Brock LLP and Ryan St. Aubin, making no submissions

Brian Pickard, for the responding
    parties Kahler Personal Injury Law Firm Professional Corporation, Deborah J.
    Lewis and Brennan Kahler

Alan L. Rachlin, for the responding
    parties Longley Vickar and Louis Brent Vickar

Joel Reinhardt, for the responding parties
    Fox Psychological Services and Allan Walton

Monika S. Korona, for the responding
    party Dr. Valentin

Andrew Porter, for the responding
    parties Dr. Paula B. Williams Medicine Professional Corporation and Dr. Paula
    Williams, making no submissions

Heard: May 20, 2020 by
    videoconference

REASONS FOR DECISION

A.

Overview

[1]

The appellant moves to set aside the order of a
    single judge of this court (the motion judge). The motion judge dismissed her
    motion to set aside the administrative dismissal of her appeal.

[2]

For the following reasons, we dismiss her
    motion.

B.

Background

[3]

On December 13, 2017, Favreau J. of the Superior
    Court of Justice issued comprehensive reasons granting summary judgment and dismissing
    the underlying action:
Graff v. Network North Reporting and Mediation
,
    2017 ONSC 7451, 75 C.C.L.I. (5th) 70. More than two years have passed since the
    appellant filed her notice of appeal in January 2018. The appeal has yet to be
    perfected.

[4]

The appeal has been administratively dismissed
    twice. The first dismissal came after the appellant had been given two
    extensions but failed to meet the deadlines imposed. After the first dismissal
    was set aside the appellant missed the new deadline imposed by the court for
    perfecting the appeal. Her motion to set aside this second administrative
    dismissal of her appeal was dismissed by the motion judge.

[5]

This motion to review the motion judges
    decision was brought out of time. The appellant was granted an extension of
    time to bring this review motion.

C.

SUBMISSIONS OF THE PARTIES

[6]

On this review motion the appellant has filed
    extensive written submissions and materials. In these materials, and in her
    oral submissions, the appellant submits that someone has tampered with her
    materials and that the respondents did not provide her with the documents
    required to perfect her appeal. She maintains that she has demonstrated conviction
    in pursuing the perfection of this appeal and that the respondents have
    contributed to the delay. She also argues that the motion judge erred in
    concluding that the appeal had no merit.

[7]

The respondents explain that they presented
    evidence before the motion judge demonstrating that all material that the
    appellant needed to perfect her appeal had been supplied to her well in advance
    of the scheduled perfection date. In their submission, that evidence was
    accepted by the motion judge and nothing before us suggests that this
    conclusion is unreasonable or wrong.

D.

Analysis

[8]

On a motion to set aside a dismissal order, the
    motion judge must assess the justice of the case, which includes consideration
    of the merits of the appeal and factors analogous to those typically considered
    on a motion to extend the time to appeal:
Sickinger v. Sickinger
, 2017
    ONCA 760, at para. 13.

[9]

After careful review of the record,
    consideration of the merits of the appeal, and taking into account the
    extensive delay and repeated failure to meet deadlines, the motion judge
    exercised his discretion not to set aside the dismissal and refused to extend
    the time for perfection. We see no basis to interfere.

[10]

Regarding the appellants claims that someone has
    tampered with her materials, possibly the respondents, there is no proof of these
    serious accusations. Nor is there a basis to conclude that the respondents have
    not reasonably assisted her in assembling documentation. These claims were not
    accepted by Doherty J.A., who heard an earlier motion brought by the appellant,
    and were rejected by the motion judge. We see no basis to interfere with these findings.

[11]

The appellants stated commitment to perfecting
    the appeal is an insufficient basis to interfere with the motion judges
    decision. This action was initiated over four and a half years ago and the
    respondents are entitled to closure. The delays here and below have been
    extensive. Although the respondents may have contributed to some of the delay, the
    justification for the appellants failure to perfect the appeal given the
    repeated and generous extensions of time is unconvincing.

[12]

In any event, as found by Favreau J., the
    underlying action is related to prejudice allegedly caused to the appellant in
    the context of her outstanding action for injury she suffered in a 2006 motor
    vehicle accident, which has yet to go to trial. That action remains outstanding
    and nothing in the record suggests that the respondents alleged actions and
    negligence, if established, caused damage to the appellant.

E.

Disposition

[13]

For these reasons, the motion is dismissed.

[14]

Costs of this motion, and of the motion to
    extend the time to bring this motion, are awarded to the following responding
    parties:

·

Network North Reporting and Mediation and Nadine
    Kuehnhold: in the amount of $750 collectively;

·

Johnson Inc. and Unifund Assurance Company: in
    the amount of $750 collectively;

·

Kahler Personal Injury Law Firm Professional
    Corporation, Deborah J. Lewis and Brennan Kahler: in the amount of $2,500
    collectively;

·

Dr. Valentin: in the amount of $750.

[15]

Costs of this motion are also awarded to the
    following responding parties:

·

Longley Vickar and Louis Brent Vickar: in the
    amount of $500 collectively;

·

Fox Psychological Services and Allan Walton: in
    the amount of $500 collectively.

[16]

All amounts are inclusive of disbursements and applicable
    taxes.

Paul
    Rouleau J.A.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.


