Canada: Nicoletti v. Nicoletti: Ontario Court Of Appeal Declines To Accept Appellant’s Email Adjournment Requests And Dismisses Appeal As Abandoned

In its March 12, 2015 decision in Nicoletti v. Nicoletti, the Ontario Court of Appeal dismissed the Appellant's appeal as abandoned when she failed to attend even though she sought an adjournment through email correspondence. The Court took this drastic step in light of:

  • lack of merit to the Appellant's appeal;
  • the fact that she had already been granted numerous indulgences;
  • her evident desire to delay the final disposition of the matter; and
  • actual prejudice to the other parties resulting from the delay.

The Court wrote:

 [3]        This appeal was originally scheduled to be heard on February 26, 2015, but Ms. Nicoletti did not appear.  According to Laskin J.A.'s endorsement, she sent an email requesting an adjournment on the basis that she had a dental problem which was causing her pain. [...]

 [4]        Justice Laskin noted that this was the third time the appellant had requested an adjournment.  His endorsement adjourned the matter to March 5, 2015, "peremptory to the appellant," [...]

 [5]        On February 27, 2015, the appellant requested another adjournment. At the president's request, the appellant provided a medical note from a dentist, a Dr. Guido. The dental note provided no information on the appellant's current pain levels and when she might be able to argue the appeal. The president requested an explanation as to the relationship between Dr. Guido and the appellant, whose married name is Guido, but got no answer. (At the hearing counsel advised that Dr. Guido was a cousin of the appellant's spouse.)


 [7]        Based on the exchange of correspondence, on March 4, 2015, court staff advised the appellant that the president of the panel had denied the adjournment request, but invited the appellant to review her adjournment request before the full panel.  In the morning on March 5, 2015, the appellant advised court staff that she would not appear at the appeal.

 [8]        The panel heard submissions from counsel for the respondents and for the PGT, which enlarged on the submissions in the correspondence. The record throughout is replete with the appellant's desire to delay the final disposition of this matter. Penny J. observed that "this litigation has dragged on quite unnecessarily for a long time". He noted that a last minute motion was brought by the appellant "in an effort to delay and complicate matters and to add to the already significant costs in controversy in this litigation." As a result of the stay of the order under appeal, the respondent Giovanna Nicoletti has been obliged to absorb the costs of caring for her mother, Vittoria Nicoletti.

 [9]        The appeal itself is nothing more than an effort to re-litigate the issues heard by Penny J., particularly relating to credibility findings, which are subject to a high standard of review of palpable and overriding error. No such error is evident from the written material filed by the appellant.

 [10]      Based on the conduct of the appellant and the material considered by the court, including the submissions received on the adjournment, which have been placed in the record of the court, the court exercised its discretion to refuse the requested adjournment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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