COURT OF APPEAL FOR ONTARIO
CITATION: Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731
DATE: 20141022
DOCKET: M43932 and M43945 (C57582)
Laskin, Gillese and Pardu JJ.A.
BETWEEN
Trent Akagi
Applicant (Respondent)
and
Synergy Group (2000) Inc. (aka Synergy Group Inc., Synergy Group 2000 Inc., The Synergy Group 2000 Inc., The Synergy Group, Inc. (2000), The Synergy Group Incorporated, The Synergy Group 2000 Incorporated) and Integrated Business Concepts Inc.
Respondents (Appellants)
William C. McDowell and Jamie J.W. Spotswood for the moving parties/appellants Vincent Villanti and Integrated Business Concepts Inc.
Jonathan C. Lisus and James Renihan, for the moving parties/appellants RV Inc. and Student Housing Canada Inc.
Shannon M. Puddister, for the responding party Ravendra Chaudhary
Terry Corsianos, for the responding party Trent Akagi
Jim Patterson and Ruth Promislow, for the Court-Appointed Receiver J.P. Graci & Associates Ltd.
Heard and released orally: October 16, 2014
On motion to review the order of Justice Michael H. Tulloch of this court dated June 10, 2014, on the appeal from the order of Justice Colin L. Campbell of the Superior Court of Justice, dated August 2, 2013.
ENDORSEMENT
[1] On April 4, 2014, the appeal in this matter was dismissed for delay (the “Registrar’s Order”). The appellants moved to set aside the Registrar’s Order and extend the time to perfect.
[2] By order dated June 10, 2014, Tulloch J.A. dismissed the motion (the “Motion Decision”), primarily because the reason for delay had not been satisfactorily explained.
[3] The appellants now move to have the Motion Decision reviewed. Both sets of appellants are represented by new counsel.
[4] The record before the court is considerably enhanced from that which was before Tulloch J.A. The two most notable differences relate to the explanation offered for the delay and the merits of the appeal.
[5] The fresh evidence indicates that it was the conduct of counsel who appeared on the motion that led to its dismissal. Counsel on the motion did not put forward evidence of their clients’ intentions to pursue the appeal and their instructions to do so as quickly as possible. Nor did they give Tulloch J.A. the full explanation for the delay, which included unsuccessful efforts to consolidate various orders into a single record and to co-ordinate the preparation of appeal materials with lawyers for other parties. Instead, counsel on the motion proffered a double hearsay affidavit, lacking specificity on key points, from a lawyer with no involvement in the case.
[6] As this court has noted on many occasions, counsel’s inadvertence should not prejudice a client’s cause. See, for example, Marché D’Alimentation Denis Theriault Ltée. v. Giant Tiger Stores Limited, 2007 ONCA 695, 286 D.L.R. (4th) 487, at para. 28.
[7] In respect of the merits of the appeal, Tulloch J.A. was not directed to, among other things, a jurisdictional issue relating to the scope of the Receiver’s authority and, in the circumstances of this case, his ability to obtain a certificate of pending litigation.
[8] The overriding consideration on a motion to set aside a dismissal order is the justice of the case, which entails a consideration of the merits of the appeal. In our view, the appeal raises serious issues. That consideration, after having due regard to the other relevant factors including the now adequately explained delay, warrants setting aside the Registrar’s Order.
DISPOSITION
[9] Accordingly, an order shall go:
1. Setting aside the Registrar’s Order, the Motion Decision and its associated costs order dated September 12, 2014;
2. Extending the time to file notices of appeal to October 23, 2014, in respect of the orders of Campbell J. dated June 14, 24 and 28, 2013, and September 16, 2013, (together with the order dated August 2, 2014, the “Receivership Orders”); and
3. Directing an expedited and consolidated appeal of the Receivership Orders.
[10] On consent, an order shall also go requiring the appellants to perfect their appeals by October 31, 2014, and the respondents to file their materials by November 21, 2014.
[11] Each of the two groups of appellants is entitled to costs fixed in the amount of $15,000, all inclusive, payable by the Receiver. There shall be no order as to costs of the motion below.
“John Laskin J.A.”
“E.E. Gillese J.A.”
“G. Pardu J.A.”