Barrister and Solicitor
Legal Writing and Research
Appeals - Formal Orders - When Necessary on Motions
Gustafson v. Johnson (Ont CA, 2016)
In this case the Court of Appeal explains why the taking out of a formal order (which is necessary to perfect an appeal) is useful, and sometimes necessary, for purposes adjudicating a motion to extend time to perfect an appeal. Presumably the same reasoning applies on a motion to extend time to commence an appeal.
 An appeal lies from an order or judgment and not from the reasons for decision. No judgment has been taken out in this proceeding. If it is necessary to understand the merits of the proposed appeal, then the court may require the parties to file the formal judgment before resolving a motion to extend time: Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd., 2014 ONCA 500 (CanLII), 17 C.B.R. (6th) 91, at paras. 5-6. In the circumstances of this case, without the formal judgment it is not possible for the court to properly assess the merits of the putative appeal. Therefore, we would set aside the Order and order that a judgment be filed before a further motion to extend time is heard and decided.
 A single example will suffice to show why it is necessary to see the formal terms of the judgment before the court can fairly assess the putative ground of appeal relating to Ms. Johnson. The moving parties submit that the application judge erred by issuing a decision purporting to bind Ms. Johnson, a person who was not named as a party to the application. Without the formal judgment, the court is not in a position to assess the merits of this ground of appeal. Indeed, this ground of appeal gains strength from the respondents’ stated reason for not yet having taken out the judgment in this matter. The reason given is that so long as the formal judgment has not been taken out, the application judge remains seized of the matter and that, in turn, leaves open the possibility of rectifying any problems arising from the fact that Ms. Johnson was not named as a respondent to the application.