



COURT OF APPEAL FOR ONTARIO

CITATION: Trivedi v. Hudd, 2022 ONCA 147

DATE: 20220214

DOCKET: M53120 (C68672)

Thorburn
    J.A. (Motions Judge)

BETWEEN

Jayesh
    Kumar Trivedi

Plaintiff (Appellant/Moving Party)

and

Anthony
    Hudd and Ash Payment Solution Inc.

Defendants (Respondents/Responding Parties)

Jayesh Kumar Trivedi, acting in person

William W. N. Fawcett, for the
    responding parties

Heard: February 11, 2022 by video conference

ENDORSEMENT

[1]

The appellant and
moving
party, Jayesh Kumar
    Trivedi, seeks to set aside the Registrars order dismissing the appeal for
    delay and to extend the time to perfect his appeal.

[2]

On July 22, 2018, the appellant began an action
    for claims arising out of a business dispute between the parties. The
    respondents brought a motion for summary judgment to dismiss the action on multiple
    grounds, including that it was statute-barred by virtue of s. 4 of the
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sched. B, which provides that no proceeding shall
    be commenced after the second anniversary of the day the claim was discovered.

[3]

On August 5, 2020, summary judgment was granted,
    dismissing the action on the grounds that the appellant had failed to commence
    his proceeding within the two-year limitation period and the claim was
    therefore statute barred.

[4]

The appellant filed his notice of appeal to this
    court on time but failed to perfect his appeal within the required time. His
    appeal was dismissed for delay on December 15, 2020. Prior to the dismissal of his
    appeal, the Registrar of this court informed the appellant that the deadline
    for perfecting his appeal had passed and that if he needed further time to
    perfect his appeal, he could obtain consent of the opposing party or bring a
    motion for an extension of time.

[5]

In January 2022, over a year after his appeal
    was dismissed, the appellant filed a motion to set aside the dismissal and
    extend the time to perfect his appeal.

[6]

The overarching principle for determining
    whether an extension of time ought to be granted is whether the justice of the
    case requires it. This includes consideration of: (i) whether the moving party
    formed a
bona fide
intention to appeal within the relevant time; (ii)
    the length of and explanation for the delay; (iii) prejudice to the responding
    parties caused, perpetuated or exacerbated by the delay; and (iv) the merits of
    the proposed appeal:
Enbridge Gas Distribution Inc v. Froese
, 2013 ONCA
    131, 114 O.R. (3d) 636, at para. 15;
Reid v. College of Chiropractors of
    Ontario
,
2016 ONCA 779, at para. 14. Lack of merit alone can be a
    sufficient basis to deny an extension of time:
Enbridge
,
at
    para. 16;
Reid
,
at para. 15.

[7]

It is agreed that the appellant intended to
    appeal within the time for bringing an appeal.

[8]

The delay is lengthy. The appellant explains the
    delay on the basis that due to COVID-19, he lost his job and was on benefits,
    he was not able to seek the assistance of counsel because most of them were
    not meeting the clients for consultations, and family members died overseas as
    a result of the pandemic. The appellants mother, brother-in-law and cousin
    died in 2021. He claims that Now I am again regaining my mental and financial
    strength and therefore I want to pursue this appeal matter.

[9]

While the appellant has undoubtedly experienced hardship
    during this period, there is no evidence of any attempts to contact counsel or
    indeed any steps taken at all to pursue the appeal since December 2020 when the
    appeal was dismissed.

[10]

More importantly, the appeal has little chance
    of success. The motion judges conclusion that the limitation period expired
    prior to the issuance of a statement of claim is a finding of mixed fact and
    law for which the standard of review is palpable and overriding error:
Longo
    v. MacLaren Art Centre
,
2014 ONCA 526, 323 O.A.C. 246, at para. 38.

[11]

The appellants statement of claim asserted that
    when money went missing from the business for reasons unknown in July of 2015,
    the appellant injected his own funds to get the business back up and running.

[12]

The appellant wrote the respondent an email on
    January 28, 2016 stating that if the respondent had a lawyer draw up documents,
    I dont have to take legal action. If not, he would prove that the respondent
    committed negligence. He claimed that he had lost $56,000 and another $13,000
    in residuals that had not been paid. The $56,000 is the subject of this claim
    (while the $13,000 related to an earlier Small Claims Court action that was
    dismissed). The respondent replied on the same day, Do what you have to do Jay
    but remember every action has an equal or greater reaction. The motion judge
    held that this exchange left no doubt about the time of discovery and that
    the email exchange is the equivalent of a smoking gun for the purposes of the
Limitation
    Act, 2002
.

[13]

At this point, the relationship had broken down
    and the appellant knew the respondent would not accede to his demand.

[14]

In his oral submissions, the appellant advised
    that in early 2016, his father passed away and he was suffering depression for
    three months.

[15]

In his grounds of appeal, the appellant claims
    he did not file a claim as he was seeking to settle the dispute through mutual
    friends. He claims that the motion judge failed to consider that the wording in
    his email to the respondent, stating I do not have to take legal action,
    suggested he would try to settle the matter through friends. However, the
    motion judge considered the appellants email to the respondent, including that
    he told the respondent that if the respondent had a lawyer draw up documents then
    he would not have to take legal action. The motion judge found that the
    respondents response indicated as counsel paraphrased, Come get me.
    Therefore, the motion judge found the claim was discovered in the legal sense
    at the latest on the date of the email correspondence, on January 28, 2016.

[16]

I see no error in the motion judges conclusion
    that the email correspondence made it clear that a legal remedy would be
    appropriate. Given the email correspondence, trying to settle the matter through
    friends or negotiation did not stop the limitation period from running. A party
    cannot rely on his own tactical reasons for delaying the commencement of legal proceedings:
Markel Insurance Company of Canada v. ING Company of Canada
, 2012 ONCA
    218, 109 O.R. (3d) 652, at para. 34;
Davies v. Davies Smith Developments
    Partnership
,
2018 ONCA 550, at para. 13.

[17]

In sum, although the claim was discovered by
    January 28, 2016, the appellant did not bring this claim until June 22, 2018, two
    years and six months later, and after the two-year limitation period had
    expired. I can see no palpable and overriding error in the motion judges
    conclusion that would allow this court to interfere with the decision of the
    motion judge, and therefore see no potential merit to this appeal: see
Sutherland
    Lofts Inc. v. Peck
,
2017 ONCA 803, at para. 12.

[18]

Moreover, the justice of the case does not
    require the granting of leave. The dispute began in 2016. When the appellant
    did not perfect his appeal in compliance with the rules in December 2020, and
    his appeal was dismissed for delay, he did not act promptly to file this notice
    of motion: see
Monteith v. Monteith
,
2010 ONCA 78, at para. 21.
    Instead, he filed the notice of motion over a year later. In these
    circumstances, the appellant has not established that the balancing of the
    factors and the justice of the case require an extension of time.

[19]

For these reasons, I find that the appellant has not satisfied the
    test for an extension of time and established that the justice of the case
    requires an extension of time. The motion to set aside the order dismissing the
    appeal for delay and to extend the time to perfect this appeal is therefore
    denied. The respondents seek $1,250 in partial indemnity costs. The moving
    party suggests he is impecunious. Under the circumstances, I make no order as
    to costs.

J.A.
    Thorburn J.A.


