Internet Attacker Misses Appeal Deadline
The case of Clancy v. Farid, 2024 ONCA 568, certainly has a colourful history. For an in depth summary of the case in the lower court, see our firm’s blog post from earlier this year. In short, this was a claim for defamation brought by 53 plaintiffs against an internet bully – Tanvir Farid (“Farid”) – who targeted HR recruiters and others in the IT industry who were involved in recruitment processes where Farid was unsuccessful. The matter proceeded to summary judgement, and it was found that the publications by Farid were defamatory, salacious, outrageous, and malevolent.
Background of Appeal
In June 2022, Farid filed a notice of appeal to challenge the summary judgement finding against him, dated March 2022. Farid obtained an order from a judge, granting him an extension to perfect his appeal on the basis that the damages were being assessed at a subsequent hearing, and Farid would likely appeal the damages award along with the summary judgement finding.
The judicial deadline for perfection was set at 30 days after the reasons for the damages decision was released, which occurred on June 27, 2023. Even with the extension, Farid did not perfect his appeal by the deadline, and so the responding parties obtained an order dismissing the appeal for failure to comply with the judicial deadline. This order from the Registrar was dated March 16, 2024. Farid brought a motion to the Court of Appeal to set aside the order dismissing his appeal.
The motion was ultimately dismissed.
Issues
Farid’s arguments included that he did not miss the deadline to perfect his appeal, if the correct interpretation of the deadline is being used. He also argued that allowing his appeal was in the interest of justice. The issues on appeal were (i) did the Registrar err in dismissing the appeal, and (ii) should the Registrar’s order nonetheless be set aside and the time for perfection extended?
Analysis
Did the Registrar Err in Dismissing the Appeal?
Farid asserted that the motion to the Registrar was pre-judged, as there were ex parte communications with counsel for the responding parties, and he was therefore unable to put forward his position. No evidence was put forward to support this position, however.
Farid also submitted that the Registrar misinterpreted the deadline for perfection, arguing that since he had challenged another portion of the underlying order via further proceedings at the Superior Court of Justice, the deadline only started to run after the ruling from the Superior Court on February 23, 2024.
The Court of Appeal rejected this argument on the basis that the court had set a specific deadline for perfection, and even described the deadline as a “strict timeline”. The Court further explained that the reasons released on June 27, 2023 were easily identifiable as the point to begin the countdown to the 30 days until the perfection deadline. Essentially, the clear meaning of the deadline was not changed by further proceedings in the Superior Court.
The Court also found that nothing in the Rules gives the Registrar the power to vary a time period set by a judge’s order. Rule 61.13(3.1) does not provide the Registrar with any discretion, and rather, requires the Registrar to dismiss any appeal that has not been perfected within the time prescribed by a judge. The Registrar, therefore, was bound to give effect to the judicial deadline for perfection set by the court and to dismiss the appeal, as the deadline was not met.
Consequently, there was no error in the Registrar’s dismissal order.
Should the Registrar’s Order Nonetheless Be Set Aside and the Time for Perfection Extended?
The Court evaluated the factors guiding the exercise of the power to set aside a dismissal order from Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391:
- Whether the appellant formed a bona fide intention to appeal within the relevant period;
- The length of the delay and explanation for the delay;
- Whether there is prejudice to the responding parties in granting the order;
- Whether the appeal is meritorious; and
- Whether the “justice of the case” requires it, the justice of the case being the overriding consideration.
The court was ultimately unsatisfied with Farid’s explanation for his delay in perfecting the appeal. Summary judgement was granted in March 2022, and more than two years passed before the appeal was dismissed for failure to be perfected.
Per the Rules, the time to perfect the appeal would have been 30 days after Farid filed his notice of appeal on June 13, 2022.[1] This deadline was extended by the court on July 26, 2023 on the basis that he may appeal the damages decision in addition to the liability determination. However, Farid neither amended the existing notice of appeal, nor filed an additional one relating to anything that was ordered on June 27, 2023. The matters covered by the notice of appeal were solely the determinations from March 2022.
Farid attempted to justify the delay by stressing that he was self-represented, however, the Court found that this had been taken into account in setting out a clear deadline for perfection. Furthermore, Farid chose not to perfect after he was given warning from the responding parties that they would move for a motion to dismiss should he fail to perfect.
Farid also advanced an argument that an unnamed pro bono counsel had lead him to believe that he did not have to perfect until all proceedings in the Superior Court were completed, however, he did not provide any evidentiary support for this argument, nor the identity of the counsel who allegedly provided this advice.
Finally, Farid submitted that counsel for the responding parties acted in bad faith by representing to Farid, in opposition to his request to schedule a further Superior Court hearing to address the portion of the June 27, 2023 order requiring an assignment, that he was required to pursue the matter by way of appeal. This argument was also rejected.
On the issue of prejudice, the Court also found that the deadline for perfection was set as a strict one to minimize prejudice to the responding parties and create finality in this matter. To extend the deadline, which had already been substantially exceeded, would be to undo that ameliorative step.
On the issue of merit, Farid’s submissions on the motion generally referred to the notice of appeal filed in June 2022 for the existence of arguable grounds of appeal. However, these assertions were wholly unsupported by anything in the record to show arguable merit. The Court ultimately found that the lower court judge was unbiased, that her reasons were quite detailed, that her findings had no palpable or overriding error, and that the evidence adduced was correctly considered.
Conclusion
The Court ultimately found that given the length of the delay, the lack of satisfactory explanation for the delay in meeting the judicial deadline, along with the prejudice to the responding parties and the absence of merit in the grounds of appeal, the justice of the case did not warrant an additional extension of time to appeal. The motion was dismissed.
Takeaway
While the court is sympathetic to self-represented plaintiffs, judicial timelines are strict and must be adhered to. Absent clear direction from the court, subsequent proceedings in the Superior Court will not necessarily alter a judicial timeline for perfecting an appeal.
While the court may take mitigating factors into account when assessing whether an extension of time to appeal is in the interests of justice irrespective of a missed deadline, baseless assertions without evidentiary support will not aid in obtaining an extension of time.
[1] R. 61.09(1)(a)