



COURT OF APPEAL FOR ONTARIO

CITATION: Cunningham v. Hutchings, 2017 ONCA 938

DATE: 20171130

DOCKET: M48514

Brown J.A. (In Chambers)

BETWEEN

Cunningham

Moving Party

and

Hutchings

Responding Party

Bryan Fromstein and A. Fabio Longo, for the moving
    party, Mildred Cunningham

Nawaz Tahir, for the responding party, Deanna Walsh

Heard: November 23, 2017

ENDORSEMENT

I.

OVERVIEW

[1]

Mildred Cunningham moves for an extension of time to appeal the March 8,
    2017 order of Gordon J. dismissing her action (the Dismissal Order). The
    respondent, Deanna Walsh, opposes the motion.

[2]

Ms. Cunningham was involved in two automobile accidents: one on June 16,
    2010; the other on April 29, 2011. She commenced this action on March 30, 2012
    seeking damages for injuries she alleges she suffered in those accidents.

[3]

Ms. Cunningham has been less than diligent in moving her action along.
    The pressure of an August 2014 Status Notice prompted her undertaking
    examinations for discovery, which took place in early 2015. However, on January
    6, 2016 Ms. Cunninghams action was dismissed administratively for delay. She
    had it restored in September, 2016.

[4]

Before a global mediation scheduled for December, 2016 took place, Ms.
    Cunninghams then counsel moved to get off the record. The mediation did not
    occur.

[5]

By order dated November 16, 2016 Reilly J. (i) ordered Ms. Cunninghams
    then counsel removed as solicitor of record and (ii) required Ms. Cunningham to
    either appoint a new lawyer or serve a notice of intention to act in person
    under subrule 15.03(3).

[6]

She did neither.

[7]

As a result, Ms. Walsh moved to dismiss the action due to Ms.
    Cunninghams failure to appoint a lawyer or file a notice of intention to act
    in person. Ms. Cunningham did not attend on the return of the motion. Gordon J.
    granted the Dismissal Order. He gave no reasons for the order.

[8]

Ms. Cunningham retained new counsel.

[9]

Instead of appealing the Dismissal Order, in April 2017 Ms. Cunningham
    moved to set aside the Dismissal Order on the basis it was made without notice
    to her. By order dated September 14, 2017 Flynn J. dismissed her motion,
    concluding the materials for the March 8, 2017 motion had been delivered to Ms.
    Cunninghams residence. He took the view Ms. Cunningham really was arguing the
    Dismissal Order was wrong and therefore her remedy was to appeal to the Court
    of Appeal.

[10]

Ms. Cunningham has appealed the order of Flynn J. All materials needed
    to perfect that appeal are ready.

[11]

Ms. Cunningham then brought this motion for an extension of time to file
    a notice of appeal from the Dismissal Order. If granted, she requests the
    appeals of the Dismissal Order and the order of Flynn J. proceed together.


II.

ANALYSIS

[12]

The applicable principles are those set
    out by Gillese J.A. at para. 26 of
Laski v. Laski
, 2016 ONCA 337. I examine them in turn below.

A.

An intention
    to appeal within the relevant time period

[13]

There is no doubt Ms. Cunningham formed the intention to challenge the
    Dismissal Order, but it is far from clear she formed an intention to appeal the
    order within the relevant time period. She did not file an affidavit on this
    motion, so there is no direct evidence of her intention.

[14]

Her conduct, however, indicates that within the prescribed appeal period
    she elected to move to set aside the Dismissal Order. That is not the same as
    forming an intention to appeal.

[15]

A motion to set aside or vary an order under rule 37.14 is not a free
    kick at the can which, if it fails, then permits a party to launch an appeal
    of the order. Such an application of the
Rules of Civil Procedure
would be antithetical to their objective in securing timely and cost-effective
    adjudications of cases on their merits.

[16]

Here, Ms. Cunningham decided to advance technical arguments on a motion
    to vary instead of taking the direct route and appealing the Dismissal Order on
    its merits. Accordingly, this factor weighs against her.

B.

The length of and explanation for the delay in filing

[17]

The delay of eight months before seeking
    this extension of time to appeal is not inordinately long. But, as mentioned,
    Ms. Cunninghams explanation of first bringing a motion to set aside rather
    than appealing the Dismissal Order hints more at tactical maneuvering than
    dealing with the merits of the order head-on. This factor is at best neutral.

C.

Prejudice
    to the responding party

[18]

The responding party cannot point to any actual prejudice in the sense
    of lost evidence or diminished memory of witnesses. Yet, the responding party
    is faced with a plaintiff who seems unwilling to proceed with due dispatch and
    such delay brings with it its own prejudice. This factor is neutral.

D.

Merits of
    the proposed appeal

[19]

On a motion to extend the time to appeal, the court considers whether
    the proposed appeal has so little merit that the court can reasonably deny the
    moving party his or her important right of appeal:
Laski
, at para.
    37.

[20]

Gordon J. did not give reasons for granting the Dismissal Order.
    Accordingly, I am left to assume that the reason he dismissed Ms. Cunninghams
    action was because she failed to appoint a new lawyer or file a notice of
    intention to act in person as required by the order of Reilly J.

[21]

Why the dismissal of her action was a proportionate response to that
    failure cannot be ascertained in the absence of reasons. A party is not
    obligated to appoint a lawyer to represent her in a civil action; she is
    entitled to represent herself: Rule 15.01(3). And one would think that if a
    party does not appoint a new lawyer, that signifies the party intends to
    represent herself.

[22]

The notice of intention to act in person seems designed to ensure the
    partys address for service and telephone number are known to the court and to
    the other parties: Rule 15.03(3). Here, the responding party knew where Ms.
    Cunningham resided; she delivered the motion materials seeking the actions
    dismissal to Ms. Cunninghams residence.

[23]

Consequently, it is unclear what would have led Gordon J. to adopt the
    most draconian remedy in the circumstances of this case. It follows Ms.
    Cunninghams proposed appeal of the Dismissal Order raises a very arguable
    issue.

[24]

This factor weighs strongly in Ms. Cunninghams favour.

The holistic view: the justice of the case

[25]

Stepping back to take a holistic view of the circumstances, I am
    persuaded the justice of the case favours granting Ms. Cunningham an extension
    of time to appeal. I am not impressed by her lack of diligence in pursuing her
    claim and she may well have hit the bottom of the well of judicial indulgence.
    But her proposed appeal is arguable, and I see no real prejudice to the
    responding party.

III.

DISPOSITION

[26]

I therefore grant Ms. Cunninghams request for an extension of time to
    appeal, but on terms. First, she must perfect this appeal no later than
    December 15, 2017. Second, I direct this appeal be heard with her appeal from
    the order of Flynn J., which I order be perfected no later than December 15,
    2017. Finally, although Ms. Cunningham has succeeded on this motion, I make no
    order as to costs. Had Ms. Cunningham taken the direct route of appealing the
    Dismissal Order instead of taking a detour through her motion to vary, this
    motion would have been unnecessary.

[27]

One final comment. Assuming Ms. Cunningham perfects both appeals by
    December 15, 2017, it will take several months before they are heard. That
    would provide all parties involved in the Cunningham-related actions with the
    opportunity to conduct a global mediation session and get down to the business
    of addressing the merits of her disputes.

David Brown J.A.


