



COURT OF APPEAL FOR ONTARIO

CITATION: Zaki v. Guelph (City), 2018 ONCA 169

DATE: 20180221

DOCKET: M48351 (C61460)

Sharpe, Watt and Benotto JJ.A.

BETWEEN

Ali Zaki

Plaintiff (Appellant)

and

The Corporation of the City of Guelph and the
    Guelph Transit Commission and Nushette Anderson, vehicle operator and the
    Guarantee Company of North America and
Cunningham Lindsey Canada and Robert
    (Rob) Seal, president CEO of Cunningham Lindsey Canada and Michael (Mike)
    Mixer, Employee of Cunningham Lindsey Canada

and

Defendants/
Respondents


Ali Zaki, self-represented

Kayla Kwinter, for the for the respondents

Heard: February 15, 2018

Motion to review single judges order.

REASONS FOR DECISION

[1]

Mr. Zaki moves to set aside the order of Epstein J.A. dismissing his
    motion to set aside the Registrars order dismissing his appeal on account of
    delay in perfecting it.

[2]

The underlying order at issue on the appeal struck out portions of the
    appellants statement of claim and dismissed his claim against the respondents
    to this motion. He took no steps to appeal that order for four months when he
    sought an extension of time to serve and file a notice of appeal. The
    respondents consented to a six-month extension. The appellant then sought and
    obtained a further extension to perfect his appeal. He failed to perfect the
    appeal in a timely fashion and the Registrar dismissed his appeal for delay on
    October 5, 2016. The appellant took no steps to set aside the Registrars order
    for eight months. He first announced his intention to move against the
    Registrars order at a case conference at which an order was made staying his
    action pending the completion of certain steps, including the payment of
    outstanding costs owing to the respondents. The case conference order provided that
    a successful appeal from the order to dismiss the action against the respondents
    would satisfy that condition.

[3]

The appellant argues that Epstein J.A. erred by failing to recognize
    that his delay could be explained by certain medical evidence, that she failed
    to respect the prior decisions of Hourigan J.A. stating that the appeal was not
    frivolous and vexatious, and that she failed to properly apply the test for
    setting aside the Registrars order, particularly with respect to prejudice.
    The appellant also complains that the respondents materials on this motion
    were not served and filed in a timely fashion.

[4]

We are not persuaded that Epstein J.A. erred in refusing to set aside
    the Registrars order, particularly in light of the appellants lengthy delay
    in moving to set aside that order.

[5]

We have reviewed the letters from the appellants primary care
    physician. While those letters indicate that the appellant has suffered from
    mental illness, we are not persuaded that his medical condition fully or
    adequately explains his delay in moving this matter forward. As noted by
    Epstein J.A., the appellant is an intelligent and articulate individual,
    capable of navigating the court system. In our view, the inevitable inference
    to be drawn from the record before us is that the motion to set aside the
    Registrars order was prompted by the case conference order requiring the
    appellant to pay outstanding costs orders as a condition of the action
    proceeding. The appellant attempted to overcome that obstacle by resurrecting
    his appeal. Epstein J.A.s finding that the appellant had no settled intention
    to set aside the dismissal order and only attempted to do so when the
    outstanding costs orders were raised at the case conference is well supported
    by this record.

[6]

The decisions of Hourigan J.A. described the appeal as weak but not
    frivolous and vexatious. The fact that an appeal is weak although not
    frivolous and vexatious is a legitimate factor to consider on a motion to
    resurrect an appeal that has been dismissed on grounds of delay.

[7]

We agree with the respondents that the lengthy delays throughout this
    proceeding have caused them prejudice and that after the delay that occurred in
    this case, they were entitled to rely on the finality of the order dismissing
    the appeal.

[8]

Finally, we do not accept the submission that any delay on the part of
    the respondents in serving and filing their responding materials has a bearing
    on the outcome of this motion. Those materials essentially repeated the
    position taken before Epstein J.A. and any delay in their delivery did not
    prejudice the appellant.

[9]

For these reasons, the motion to set aside the order of Epstein J.A. is
    dismissed with costs to the respondents fixed at $750 inclusive of
    disbursements and taxes.

Robert J. Sharpe J.A.

David Watt J.A.

M.L. Benotto J.A.


