



COURT OF APPEAL FOR ONTARIO

CITATION: Friedrich v. Metropolitan Toronto Condominium
    Corporation No.1018, 2019 ONCA 216

DATE: 20190319

DOCKET: M50068

Lauwers J.A. (Motion Judge)

BETWEEN

Ralph Friedrich

Plaintiff (Moving
    Party)

and

Metropolitan Toronto Condominium Corporation No.
    1018

Defendant
    (Responding Party)

Ralph Friedrich, in person

Dan Rosenbluth, duty counsel

Natalia Polis, for the responding party

Heard: March 13, 2019

REASONS FOR DECISION

[1]

Justice Myers, sitting as a Divisional Court judge, dismissed Mr.
    Friedrichs appeal of a decision of a deputy judge of the Small Claims Court,
    which dismissed his action against the responding party. His decision is dated February
    19, 2019.

[2]

Mr. Friedrichs automobile was vandalized in the condominiums underground
    garage. He blames the vandalism on a change in the provision of security for the
    garage. He claimed damages for negligence relating to that change in security.
    The appeal judges decision was this:

Under the
Condominium Act
, 1998
, the Boards
    business judgment is entitled to deference. It was open to the Appellant to
    prove that the Boards decision [to change the security system] was
    unreasonable by calling expert or security evidence. Instead he just submits
    that the fact that vandalism occurred establishes the case. He argues that the
    Defendant treated its security guards as concierges and they did not give [their]
    full time and attention to the CCTV. But absent some evidence that this was
    unreasonable, or that it foreseeably caused the plaintiffs loss, the plaintiff
    has not established a breach of the applicable standard of care. The
    defendants evidence, that the judge accepted, was that it was prudent in the
    circumstances. The judge found that the plaintiff did not meet his burden to
    prove otherwise. I see no error in principle and no palpable or overriding
    error in these findings.

[3]

Mr. Friedrich was obliged to bring a motion for leave to appeal to this
    court within 15 days of the appeal decision, according to r. 61.03.1 (3) (a) of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. The delay in this
    case was more than 20 days beyond the applicable appeal period. It appears that
    neither Mr. Friedrich, nor his previous counsel, nor counsel who swore the
    jurat in his affidavit, was aware that the appeal period was 15 days.

[4]

Since the appeal was late, I am obliged to consider the following
    factors in exercising discretion to extend the time for filing the notice of
    appeal: a) whether the moving party had a
bona fide
intention to appeal
    before the expiration of the appeal period; b) any explanation for the delay in filing; c) any prejudice to
    the responding parties caused by the delay;
    and d) the merits of the proposed appeal. What is unusual about this motion is
    that the delay relates to a motion for leave to appeal to this court from the
    Divisional Court. In my view, this must affect my assessment of the merits.

[5]

I have little doubt that Mr. Friedrich wanted to appeal the decision
    right away and thought that he would be in time, but his prior counsel, he
    says, abandoned him. The explanation for the delay is adequate. There is no
    prejudice to the responding party. The issue is whether the appeal has merit.

[6]

Mr. Friedrich seeks to bring a second appeal to this court, having already
    had one appeal before the Divisional Court. The standard for leave to appeal to
    the Court of Appeal from a decision of the Divisional Court is set out in
Re
Sault Dock Co. Ltd. and City of Sault Ste. Marie
,
[1973] 2 O.R. 479 (C.A.), and cases
    following it. The focus is the public importance of the issue proposed to be
    raised in the appeal.

[7]

Duty counsel argues that the appeal judge was wrong in law to require
    Mr. Friedrich to provide expert evidence on the standard of care concerning the
    security services in order to succeed. This, he asserts, is a matter of public
    importance because it has a broader reach.

[8]

However, in my view, the appeal judges decision is very specific and
    has no broader application than the immediate case before him. This is not a
    case of public importance.

[9]

I therefore find Mr. Friedrich has not established that his appeal is
    meritorious, as he must do to justify an extension of time within which the
    motion for leave to appeal may be brought where what is sought is a second
    appeal. The motion is dismissed with costs payable by Mr. Friedrich to the responding
    party in the amount of $1,000 all-inclusive.

P. Lauwers J.A.


