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Civil Litigation - Orders - By Registrar. Guillaume v. Ontario (Animal Care Review Board)
In Guillaume v. Ontario (Animal Care Review Board) (Ont CA, 2024) the Ontario Court of Appeal considered a motion "setting aside the Registrar’s order dismissing the motion for leave to appeal":[10] The considerations on a motion to set aside a Registrar’s order are similar, but not identical, to the considerations on a motion to extend a deadline to perfect an appeal or leave motion. The overarching consideration in these types of motion is the justice of the case. Relevant factors include the merits of the appeal or proposed appeal; whether the moving party had an intention to appeal within the required deadline to do so or, in the case of a failure to perfect within the deadline, whether the moving party has maintained an intention to pursue an appeal; the length of the delay and any explanation for it; and any prejudice caused to the responding party as a result of the delay: Graff v. Network North Reporting and Mediation, 2020 ONCA 319, at para. 8, leave to appeal refused, [2020] S.C.C.A. No. 431; Sickinger v. Sickinger, 2017 ONCA 760, at para. 13.
[11] The test on a motion to set aside a Registrar’s order is, however, more demanding than the test on a motion for an extension to perfect: “More justification must be shown by a party moving to aside an administrative dismissal of an appeal than would have been required had the party earlier availed itself of its rights to move for an extension of time to perfect the appeal”: Sickinger, at para. 14, citing Langer v. Yorkton Securities Inc. (1986), 1986 CanLII 2612 (ON CA), 57 O.R. (2d) 555 (C.A.), at p. 558. I would add that, where a party has already been granted an extension of time, a request for further time may be harder still to justify.
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[18] This case is distinguishable from cases such as Derakhshan v. Narula, 2018 ONCA 658, 142 O.R. (3d) 535, or Issai v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391. In those cases, the delays involved could be counted in days rather than months; the moving parties presented evidence explaining their failure to meet filing deadlines; no extensions of time had previously been granted; and the Registrar had not issued a dismissal order. Derakhshan and Issai furthermore concerned appeals as of right, as opposed to a motion for leave to appeal. The impact of denying further time in those cases was undeniable, even if the merits of the appeals appeared slight. Here, given that the proposed appeal’s lack of merit makes it unlikely that the moving party could obtain leave even if given more time to do so, dismissing the motion has less impact.
[19] Having weighed the relevant considerations and having stepped back to consider the overall justice of the case, I conclude that the motion should be dismissed. There are minimum requirements that a moving party must meet to establish that a Registrar’s order should be set aside. Those requirements have not been met here. . Robson v. Law Society of Ontario
In Robson v. Law Society of Ontario (Ont CA, 2023) the Court of Appeal considered the status of a registrar's 'administrative dismissal', here in mucky appellate interlocutory proceedings:[27] Second, properly characterized, the Registrar’s dismissal is neither an order nor a decision within the meaning of r. 61.16(5). The parties agree the Registrar did not make an order so no more need be said on that score. In my view, in dismissing the Review Motion, the Registrar did not make a decision either. The Registrar simply did as the Panel Order dictated and administratively dismissed the Review Motion. It was the Panel that made the decision stipulating that failure to comply with the deadline would result in dismissal of the Review Motion – not the Registrar.
[28] The wording of the email correspondence from the Court staff to the parties confirms this: “As per the [Panel Order], if you did not perfect by that time, the matter would be administratively dismissed” and “[T]he above-noted motion has now been administratively dismissed in accordance with the Panel’s decision dated December 18, 2023” (emphasis added).
[29] I do not accept that Sickinger suggests otherwise. It is correct that, at para. 1 of Sickinger, Brown J.A. refers to the “administrative dismissal” of the appellant’s appeal for delay. However, he immediately defines that act as the “Dismissal Order” and later describes the process the Registrar followed in making the Dismissal Order. The Registrar sent the parties a Notice of Intention to Dismiss for Delay, advising them the appeal would be dismissed unless perfected within a specific time. When the appeal was not perfected in time, the Registrar issued the Dismissal Order: Sickinger, at paras. 16-17. Therefore, in Sickinger, as the affected party, the appellant could move under r. 61.16(5) to set aside the Registrar’s order.
[30] It is somewhat unfortunate that the January 4, 2024 Email indicated that if Mr. Robson intended to perfect the Review Motion, a single judge motion to reopen and extend the deadline to perfect could be filed with the Court. However, jurisdiction can often be a tricky matter, as the long-standing debate between interlocutory and final matters exemplifies. In any event, it is for the Court to decide whether it has jurisdiction. For the reasons given, in my view, a single judge lacks jurisdiction to hear the Current Motion. . Midland Resources Holding Limited v. Bokserman
In Midland Resources Holding Limited v. Bokserman (Ont CA, 2022) the Court of Appeal made the interesting point that a registrar's order is administrative in nature (not apparently judicial):[25] In any event, given that any procedural flaws associated with the earlier assignment have been corrected, there is no doubt that a new order to continue could validly be issued. An order to continue, signed by the Registrar, is in the nature of an administrative action. If necessary, it would have been reasonable to issue a new order to continue: Outfront Media Canada LP v. Clarity Outdoor Media Inc., 2017 ONSC 2136, at para. 68.
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