



COURT OF APPEAL FOR ONTARIO

CITATION: Massoumi v. Bafas, 2019 ONCA 536

DATE: 20190625

DOCKET: C66456

Hourigan, Paciocco and Fairburn JJ.A.

BETWEEN

Safa Massoumi and 1824380 Ontario Inc.

Plaintiffs (Appellants)

and

Eleni Bafas also known as Helen Bafas

Defendant (Respondent)

Sakina Babwani, for the appellant

Robert Kalanda, for the respondent

Heard and released orally: June 24, 2019

On appeal from the judgment of Justice Andrew J. Goodman
    of the Superior Court of Justice, dated December 14, 2018.

REASONS FOR DECISION


[1]

The appellants appeal a motion judges discretionary decision to deny
    their last-minute request for an extension of time to set an action down for
    trial. They claim that the motion judge committed legal errors and palpable and
    overriding errors of fact. We disagree, and dismiss the appeal.

[2]

The appellants take no issue with the test the motion judge applied. He
    concluded that it is not generally in the interests of justice to grant an
    extension without an acceptable explanation for the delay, and a demonstration
    that the respondents will not suffer non-compensable prejudice. The motion
    judge reasonably found that the appellants failed to satisfy either of these
    considerations.

[3]

We see no misapprehension by the motion judge of the appellants
    explanation for the delay. He appreciated that the appellants were relying
    broadly on Mr. Massoumis medical condition to explain the delay. The evidence
    offered by the appellant to establish that Mr. Massoumis medical condition
    prevented him from prosecuting his lawsuit was inadequate. The motion judge was
    correct in noting that the medical reports did not relate Mr. Massoumis
    medical challenges to his ability to prepare the lawsuit for trial, and that
    the only report that addressed his mental and intellectual capacity was stale
    or dated, from 2014.

[4]

Moreover, despite his pre-existing medical condition, Mr. Massoumi was
    able to advance the litigation until 2015, and even after that date, was able
    to pursue to its conclusion in October 2018 a personal injury action related to
    his brain injury.

[5]

The motion judges determination that the appellants had not adequately
    explained the delay was made without palpable and overriding error.

[6]

Nor would we interfere with the motion judges conclusion that the
    appellants have failed to show that the extension would not cause
    non-compensable prejudice to the respondents. It was appropriate for the motion
    judge to presume that relevant litigation documents were probably no longer
    available, given that the appellants have failed to produce those documents,
    despite having undertaken to look for them since March of 2015.

[7]

We see nothing unfair with the motion judge considering the respondents
    evidence about the inability of the appellants to pay costs without examining
    the merits of the appeal. The appellants ability to pay costs was a live issue
    in the motion. The appellants bore the onus of demonstrating that any prejudice
    from the delay could be compensated yet chose not lead any evidence of their
    ability to pay costs. Their decision not to lead such evidence cannot preclude
    the respondents from addressing the financial abilities of the appellant.

[8]

Moreover, the appellants did not ask for an adjournment to respond. They
    cannot now claim that the process was unfair.

[9]

We do not disagree with the appellants claim that differences can be
    found between other decisions denying extensions, and this case. This, however,
    was a discretionary decision made without error of principle or palpable or
    overriding error.

[10]

The
    appeal is therefore dismissed. The appellants are jointly and severally liable
    to pay to the respondent costs on this appeal in the amount of $6,500,
    inclusive of applicable taxes and disbursements.

C.W.
    Hourigan J.A.

David M. Paciocco J.A.
Fairburn J.A.


