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Simon Shields, LLB

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Appeals - Leave to Appeal - Extension of Time

Maracle III v. Miracle (Ont CA, 2017)

Here the Court of Appeal restates the considerations to be applied when considering extending the time for applying for leave to appeal:
[3] The parties agree on the applicable principles governing this motion as described at paras. 14 and 15 of Reid v. College of Chiropractors, 2016 ONCA 779 (CanLII):
The test on a motion to extend time is well-settled. The governing principle is whether the “justice of the case” requires that an extension be given: Rizzi v. Mavros, 2007 ONCA 350 (CanLII), 85 O.R. (3d) 401, at para. 17; Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 (CanLII), 114 O.R. (3d) 636, at para. 15. Each case depends on its own circumstances. The relevant considerations include:

a) whether the moving party formed a bona fide intention to seek leave to appeal within the relevant time period;

b) the length of, and explanation for, the delay in filing;

c) any prejudice to the responding party, caused, perpetuated or exacerbated by the delay; and

d) the merits of the proposed appeal.

See Rizzi, at para. 16; Froese, at para. 15.

This court has held that lack of merit alone can be a sufficient basis on which to deny an extension of time, particularly in cases such as this where the moving party seeks an extension of time to file a notice of leave to appeal, rather than an extension of time to file a notice of appeal: Miller Manufacturing and Development Co. v. Alden, [1979] O.J. No. 3109 (C.A.), at para. 6; Froese, at para. 16.


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