



COURT OF APPEAL FOR ONTARIO

CITATION: Lumaj v. St. Michaels Hospital,
    2022 ONCA 140

DATE: 20220214

DOCKET: M53144

Thorburn
    J.A. (Motions Judge)

BETWEEN

Diella
    Lumaj on her own behalf and as administrator of the estate of Gjyste Lumaj
    deceased
, Lek Lumaj, Hana Gjelaj, Emmanuelle
    Gjelaj, Damjan Gjelaj,
Lula Lumaj
and Klodian Lumaj

Appellants (
Moving Parties
)

and

St.
    Michaels Hospital, Dr. Robert James Sargeant
, Joan
    Nurse and Jane Nurse

Respondents (
Responding Parties
)

Diella Lumaj and Lula Lumaj, acting in
    person

Stephen W. Ronan, for the respondent, Dr.
    Robert James Sargeant

Parmis Goudarzi-Malayeri
, for the respondent, St. Michaels Hospital

Heard: February 11, 2022 by video conference

ENDORSEMENT

Relief Sought

[1]

This is a motion brought by the moving parties,
    Diella Lumaj and Lula Lumaj, to extend the time to seek leave to appeal the endorsement
    of Swinton J. of the Divisional Court dated August 30, 2021.

[2]

The responding parties, St. Michaels Hospital
    and Dr. Robert James Sargeant, oppose the motion to extend the time to seek
    leave to appeal the endorsement of Swinton J. dated August 30, 2021.

The Test for
    Determining Whether to Grant an Extension of Time to Appeal

[3]

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.

History of the
    Proceeding

[4]

On August 25, 2007, Gjyste Lumaj came to St.
    Michael's Hospital. She complained of shortness of breath and chest pain and
    was treated for cardiac issues. She died on September 12, 2007 from apparent
    abdominal sepsis.

[5]

The moving parties commenced their action on August
    13, 2009.

[6]

A dismissal order was issued by the registrar almost
    four years later, on May 1, 2013. At the time of the administrative dismissal,
    the moving parties were represented by counsel.

[7]

On August 28, 2019, the moving parties delivered
    a Notice of Intent to Act in Person and on July 31, 2019 they brought a motion
    to set aside the dismissal order. The motion was heard by McGraw A.J. on
    December 3, 2020. He dismissed the motion.

[8]

McGraw A.J. set out the legal test for setting
    aside a registrars dismissal for delay as described in
Reid v. Dow Corning
    Corp.
(2001), 11 C.P.C. (5th) 80 (Ont. S.C.), at para. 41, revd on other
    grounds, 48 C.P.C. (5th) 93 (Ont. Div. Ct.) and adopted by this court: see
Prescott
    v. Barbon
,
2018 ONCA 504, 141 O.R. (3d) 616, at para. 14. Those
    factors are: (i) the explanation of the delay, (ii) the inadvertence in missing
    the deadline, (iii) the efforts to move promptly to set aside the dismissal,
    and (iv) the absence of prejudice to the other side.

[9]

McGraw A.J. was not satisfied that the moving
    parties missed the five-year deadline to set the action down for trial as a
    result of inadvertence and he was not satisfied that the moving parties satisfied
    their onus of demonstrating that the responding parties would not suffer
    significant prejudice as a result of the delay. He concluded that, taking into
    consideration all of the factors, the responding parties right to rely on the
    finality and assurance of the action being dismissed for approximately six
    years outweighed the moving parties right to have the action determined on its
    merits, and noted that the moving parties may be able to make a claim against their
    former lawyer.

[10]

The moving parties appealed McGraw A.J.s
    decision to the Divisional Court. In her endorsement dated August 30, 2021, Swinton
    J. dismissed the appeal. She held that the decision of McGraw A.J. was an
    exercise of discretion, based upon his consideration of the above factors from
Reid
    v. Dow Corning Corp
. She confirmed that as an appellate judge, she had the
    power to overturn McGraw A.J.'s decision if he made an error of law or a palpable
    and overriding error of fact in the assessment of the evidence.

[11]

Swinton J. held that McGraw A.J. applied the
    correct legal principles, considered the relevant factors, and adopted a
    contextual approach in applying the
Reid v. Dow Corning Corp
.
test. She concluded that given the inordinate length of the delay, McGraw A.J.
    reasonably concluded that refusal to set aside the dismissal was just and there
    was therefore no basis for appellate intervention. Swinton J. ordered costs of
    $750 to Dr. Sargeant and $200 to St. Michaels Hospital.

Analysis and
    Conclusion

[12]

Pursuant to r. 61.03.1(3) of the
Rules of
    Civil Procedure
,
R.R.O. 1990, Reg. 194, the moving parties were
    required to serve a notice of motion seeking leave to appeal within 15 days of
    the decision, that is, on or before September 14, 2021.

[13]

On September 27, 2021, counsel for St. Michaels
    Hospital emailed the moving parties to request approval for the order
    dismissing the appeal. Counsel for St. Michaels Hospital advised that she had
    instructions not to pursue the costs awarded by Swinton J. if the moving
    parties did not seek leave to appeal. She asked the moving parties to advise if
    they intended to seek leave to appeal.

[14]

Counsel for Dr. Sargeant also communicated that
    he had instructions not to pursue costs if leave to appeal was not sought.

[15]

The moving parties did not respond.

[16]

On October 11, 2021, the moving parties
    attempted to file a notice of motion for leave to appeal with this court.
    However, on October 13, 2021, this court advised the moving parties that the
    notice of motion was not accepted as the moving parties had not provided proof
    of service. The first notice the responding parties received of the appeal was three
    months after the deadline, on December 15, 2021.

[17]

The moving parties are self-represented and have
    said that they have health issues although no evidence was presented to
    substantiate the health claims.

[18]

Therefore, the record does not support a finding
    that the moving parties formed the intention to bring a motion to seek leave to
    appeal within the requisite 15 days: see
Reid
,
at para. 16.
    That said, it is clear that the moving parties had the requisite intention by
    October 11, 2021.

[19]

The moving parties have also not provided
    evidence to support their explanation for the delay. On the other hand, I see
    nothing in the record to suggest that the responding parties will suffer
    prejudice, apart from the cost associated with permitting the litigation to
    continue.

[20]

Therefore, I consider the merits of the proposed
    appeal. The moving parties seek to appeal a decision of the Divisional Court
    exercising its appellate jurisdiction. Such decisions of the Divisional Court
    are intended to be final:
Sault Dock Co. v. Sault Ste. Marie (City)

(1973)
,
34 D.L.R. (3d) 327 (Ont. C.A.), at p. 328;
Enbridge
,
at para. 19. A review of such a decision by this court is an exception to
    the general rule.

[21]

Before granting leave, this court must be
    satisfied that the proposed appeal presents an arguable question of law, or
    mixed fact and law, requiring consideration of matters such as the
    interpretation of legislation; the interpretation, clarification or propounding
    of some general rule or principle of law; or the interpretation of an agreement
    or by-law where the point in issue involves a question of public importance:
Sault
    Dock Co.
,
at p. 329;
Enbridge
,
at para. 20. This
    court will also consider cases where special circumstances make the matter one
    of public importance or where the interests of justice require that leave
    should be granted:
Sault Dock Co.
, at p. 329;
Enbridge
,
at
    para. 21. Finally, there may be cases in which there is clearly an error in the
    judgment where this court might grant leave to correct the error:
Sault
    Dock Co.
,
at p. 329;
Enbridge
,
at para. 22.

[22]

In their notice of appeal, the moving parties
    submit that McGraw A.J. misapprehended the evidence, failed to consider the moving
    parties credibility, and that they did not receive a fair trial and are the
    victims of a miscarriage of justice. However, they have not offered grounds for
    appealing the decision of Swinton J. of the Divisional Court. As noted above,
    Swinton J. found that McGraw A.J. applied the correct legal principles,
    considered the relevant factors and considered the context as provided for in
Reid
    v. Dow Corning Corp
. She therefore concluded that Associate Judge McGraw
    did not make an error of law or a palpable and overriding error of fact.
    Swinton J. therefore held that there was no basis for her to overturn the
    decision of McGraw A.J.

[23]

In my view, the appeal does not raise an
    arguable question of law, and certainly not one of the type contemplated by
    this court in
Sault Dock Co.
, at p. 329. Nor does the appeal
    involve a special circumstance or a matter of public importance.

[24]

For these reasons, while I understand the
    importance of this matter to the moving parties, for the above reasons, they
    have not met the test to establish that the justice of the case requires an
    extension of time for filing the notice of leave to appeal. I therefore decline
    to permit the extension to seek leave to appeal. Counsel for the respondents indicated
    that the partial indemnity costs incurred are $1,705.85. While I appreciate
    that these costs are very reasonable, under the circumstances and understanding
    that the appellants are impecunious, there is no order as to costs.

J.A.
    Thorburn J.A.


