



COURT OF APPEAL FOR ONTARIO

CITATION: Rahsepar v. Estabrooks, 2018 ONCA 487

DATE: 20180525

DOCKET: M49084

Brown J.A. (Motion
    Judge)

BETWEEN

Simintaj Rahsepar

Applicant (Appellant)

and

Ms. Kathy Estabrooks

Respondent (Respondent)

Simintaj Rahsepar, acting in person

Andi Jin, for
    the respondent

Heard: April 30, 2018

REASONS FOR DECISION

INTRODUCTION

[1]

The applicant, Simintaj Rahsepar, seeks an order granting her an
    extension of time to file a notice of appeal from the order of James J. dated
    June 7, 2017 striking out her statement of claim without leave to amend.

[2]

For the reasons that follow, the motion is dismissed.

THE GOVERNING PRINCIPLES AND ANALYSIS

[3]

The principles that govern her request are those set out in cases such
    as
Kefeli v. Centennial College of Applied Arts and Technology
(2002),
    23 C.P.C. (5th) 35 (Ont. C.A., in Chambers): (i) whether the applicant formed
    an intention to appeal within the relevant period; (ii) the length of, and
    explanation for, her delay; (iii) the prejudice to the respondent; (iv) the
    merits of the appeal; and (v) whether the justice of the case requires the
    extension sought. I will address each ground.

The intention to appeal

[4]

Following the hearing of this motion, respondents counsel wrote the
    court to advise that on July 7, 2017 the applicant served a notice of appeal on
    the Crown Law Office  Civil, but evidently she did not file it with the court.
    The respondent does not contest that the applicant formed an intention to
    appeal within the requisite period.

The length of and explanation for the delay

[5]

The applicant filed her motion for an extension order on April 18, 2018,
    some 10 months following the order she seeks to appeal. That is a long delay.

[6]

The applicant offers two explanations for her lengthy delay.

[7]

First, she deposes that it took from June 2017 until January 19, 2018
    for this court to consider her request for a fee waiver. When the court grants
    or refuses a fee waiver, a letter or email usually is sent to the party. The
    applicant has not included in her motion material any application for a fee
    waiver or any communication from the court approving or denying her fee waiver.
    Although she included a January 19, 2018 letter from the Special Counsel, Office
    of the Chief Justice, responding to her letter of October 10, 2017, which
    apparently concerned a fee waiver, the applicant did not include her October
    letter. As a result, I simply lack the evidence to assess this part of the
    applicants explanation for her delay.

[8]

Second, the applicant deposes that since June 2017 she has suffered from
    various medical problems that prevented her from filing a notice of appeal or
    bringing a motion for an extension of time. The applicant filed extensive
    evidence on this point, both before and at the hearing. Some of the evidence
    covers her medical history well before the order she seeks to appeal.

[9]

I have reviewed it all. Having done so, I see no evidentiary basis to
    support the applicants contention that any medical condition prevented her
    from filing her motion for an extension of time until April 2018.

Prejudice to the respondent

[10]

The
    respondent does not contend she has suffered any prejudice from the applicants
    delay.

Merits of the appeal

[11]

In
    his endorsement, the motion judge stated that [t]here are numerous obvious
    pleading shortcomings in the [amended] statement of claim. As well, when the
    current claim was assessed in the larger context of related proceedings that
    had been dismissed on their merits, this action is also an abuse of process.

[12]

The
    respondent, Ms. Estabrooks, is an employee in the Registrars office of the
    Superior Court of Justice in Ottawa. The applicant sued the respondent for
    damages for inflicting unnecessary emotional pain, suffering and uncertainty.

[13]

The
    applicants claim is very difficult to follow. As best as I can determine, she
    is alleging that the respondent mismanaged paperwork and court filings involved
    in the applicants related proceeding, which resulted in certain orders being
    made against and to the prejudice of the applicant. The respondents behaviour
    also caused the applicant stress.

[14]

Even
    on the most liberal reading of the applicants amended statement of claim, I am
    unable to discern a cause of action. I see no merit to her appeal.

[15]

I
    would note that this courts records disclose that the applicant brought two
    appeals from the dismissal of her related proceedings: C61938 and C61939. Both
    appeals were dismissed. In an endorsement dated January 27, 2017 in C61938, a
    panel of this court wrote:

These actions began some 8-1/2 years ago. The summary judgment
    motion judge and two judges of this court have decided the matter to be devoid
    of merit. The appellant continues to bring new motions. We have reviewed the
    latest material. We too see no merit in the claim. Valuable resources have been
    expended. The respondents have been put to needless expense. Enough is enough.
    The motions are frivolous, vexatious and an abuse of the court process. The
    motions are dismissed.

The justice of the case

[16]

The
    applicant complains the motion judge made his order in her absence and in the
    face of her request for an adjournment due to a medical problem. In his
    endorsement, the motion judge recites at length the multi-year history of the
    respondents motion to strike and the delays in scheduling that motion as a
    result of the applicants conduct.

[17]

I
    have considered that history, together with all of the factors set out above.
    When considered as a whole, I conclude that the justice of the case requires
    that I dismiss the applicants motion, especially given the absence of a
    reasonable explanation of the applicants delay in seeking an extension of time
    and the absence of any merit to her claim.

Disposition

[18]

The
    applicants motion is dismissed. The respondent does not seek its costs of the
    motion.

David Brown J.A.


