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Appeals - Cross-Appeals. Alyousef v. Alyousef [extend time to file cross-appeal]
In Alyousef v. Alyousef (Ont CA, 2026) the Ontario Court of Appeal (mostly) dismissed an appeal (and cross-appeal), this brought against "the trial judge’s award of damages, ordered as an oppression remedy under s. 248 of the Ontario Business Corporations Act, R.S.O. 1990, c. B.16 (“OBCA”); for breach of contract, breach of fiduciary duty and duty of loyalty; and for unjust enrichment. They also dispute the calculation of prejudgment interest and costs.".
Here the court considers allowing a cross-appeal to be argued, even though the self-presenting "respondent did not file and serve a notice of cross-appeal" - but did raise grounds in their factum. In the end, the court treated it as a motion to extend time to file the cross-appeal:Should the respondent be permitted to raise these issues?
[34] Further to the letter sent by this court’s executive legal officer on December 29, 2025, we requested that the parties be prepared to address the question of whether the respondent should be permitted to raise the above issues.
[35] The appellants do not object to the respondent raising the third ground of the cross-appeal but submit that he should not be permitted to argue the first two grounds.
[36] At the conclusion of the submissions on this threshold issue on the cross-appeal, we advised the parties that, for reasons to follow, we would not permit the respondent to advance the first two grounds of the cross-appeal but that he could rely on the third ground. These are the reasons for our decision.
[37] The three grounds of the cross-appeal do not arise out of the issues raised by the appellants. As a result, the respondent must advance them by way of cross-appeal and therefore must obtain an extension of time in which to assert a cross-appeal. The overarching consideration is whether the justice of the case warrants the extension even at this late date. Informing that consideration are the following factors: 1) a timely intention to cross-appeal within the deadline prescribed by the rules; 2) the length of and explanation for the delay; 3) any prejudice by the delay to the appellants; 4) the merits of the cross-appeal: Richardson v. Arsenov, 2022 ONCA 137, at para. 6.
[38] The first two factors can be considered together. Rule 61.07(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, requires a respondent to file a notice of cross-appeal within 15 days of being served with the appellant’s notice of appeal. In the present case, the appellant’s amended notice of appeal is dated March 14, 2025. The respondent’s notice of cross-appeal should therefore have been filed by March 29, 2025.
[39] The respondent did serve a notice of cross-appeal dated February 8, 2025 but failed to file it. In his notice of cross-appeal, he only raised the third ground. The respondent has not adequately explained why he did not raise the first two grounds before now.
[40] In any event, the respondent’s extension request falters with respect to the first two proposed grounds of cross-appeal on the factors of prejudice and lack of merit.
[41] In terms of prejudice, the appellants have not had the opportunity to respond to the respondent’s cross-appeal in writing, although the respondent’s factum made them aware of the issues that the respondent wished to raise. The real prejudice, however, is that there is no appeal record for the cross-appeal. As a result, some of the exhibits that the parties will need to argue the first two grounds of the cross-appeal are absent.
[42] The absence of the necessary cross-appeal record also informs the merits factor with respect to the first two grounds of the proposed cross-appeal. First, the first ground is undermined by the trial judge’s statement in his reasons that the respondent was prepared to accept the Fuller Landau report; if there was an order prohibiting this reliance, it is not before us. Second, the trial judge’s reasons dismissing the action against Zainab Almelli appear to be firmly grounded in the record; if there is evidence undermining the trial judge’s conclusion in this respect, again, it is not before us. These grounds therefore appear doomed to failure.
[43] In addition to the unexplained delay, the factors of prejudice and merits weigh against allowing the requested extension with respect to the first two proposed grounds of cross-appeal. We concluded that it was not in the interests of justice at this late date to permit the respondent to raise these grounds of appeal. . Jackson v. Rosenberg
In Jackson v. Rosenberg (Ont CA, 2025) the Ontario Court of Appeal grants leave to hear a cross-appeal where it was not delivered [under R61.07(3)]:[8] Ordinarily a notice of cross-appeal is required if a respondent seeks to vary the order below: r. 61.07(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. However, a cross-appeal may be heard without such a notice with leave of the court: r. 61.07(3).
[9] It is in the interests of justice to grant leave, treat Mr. Jackson’s requested changes as a cross-appeal, and vary the judgments to accord with the position that the right of survivorship was completely extinguished when the joint tenancy was severed. As noted above, Mr. Jackson clearly asked for that clarification on the appeal and Ms. Rosenberg also submitted that it was contrary to law for a right of survivorship to exist in a tenancy in common. ... . Promotion in Motion, Inc. v. Hershey Chocolate & Confectionery LLC
In Promotion in Motion, Inc. v. Hershey Chocolate & Confectionery LLC (Fed CA, 2024) the Federal Court of Appeal denied that a cross-appeal is required, here considering the "real-life, practical consequences" dicta of Stratas JA from Canada (Citizenship and Immigration) v. Canadian Council for Refugees (Fed CA, 2021):[8] .... A cross-appeal is only required if a different disposition is sought (Hilton, at para. 12) or if the alternative position would lead to a different judgment (Canada v. Jim Shot Both Sides, 2022 FCA 20, at para. 40 [JSBS]).
[9] The appellant submits that a "“different disposition”" means the cross-appealing party will receive remedial "“real-life, practical consequences”". In the instant case, those practical consequences would be that it would have the benefit of appellate review of Federal Court’s decision on the motion. This argument fails.
[10] This is a misreading of Stratas J.A.’s characterization of "“real-life, practical consequences”", which relate to differences in the order, not its reasons (Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, at paras. 12, 14 [Refugees]). Here, there are no consequences which required a cross-appeal. The respondent was successful in Federal Court and has no interest in disturbing that outcome. It is precisely because Hershey challenges part of the reasoning and not the judgment, that the cross-appeal is improper (Refugees, at paras 12, 14). . Promotion in Motion, Inc. v. Hershey Chocolate & Confectionery LLC
In Promotion in Motion, Inc. v. Hershey Chocolate & Confectionery LLC (Fed CA, 2024) the Federal Court of Appeal usefully cites circumstances in which a cross-appeal may be called for:Note that in this case the dispute was as to whether a cross-appeal was necessary where the potential cross-appellant was successful on the final order at trial. If the other side was successful in the main appeal the issue then may have become relevant (fresh evidence). [7] It is trite law that an appeal lies from the order or judgment of a court, not from the reasons given (J. Sopinka, M.A. Gelowitz & W.D. Rankin, Conduct of an Appeal, 5th ed. Toronto: LexisNexis, 2022, at 30 [Sopinka]). In most cases, if the reasons are right, it is likely that the judgment is correct. However, circumstances arise where the judgment is correct, but for the wrong reasons (Breslaw v. Canada (Attorney General), 2005 FCA 152).
[8] Consistent with this basic rule, where a court order or judgment is favourable to a party, it is not required to file a cross-appeal unless it seeks a different disposition of the final [SS: italics mine] judgment (Miller Thomson LLP v. Hilton Worldwide Holding LLP, 2019 FCA 156 [Hilton]). Rule 341(1)(b) of the Federal Courts Rules, S.O.R./98-106 (FCR), on filing cross-appeals, reflects the well-established jurisprudence in this regard. Nor is a cross-appeal required where a party advances alternative arguments to sustain a decision. A cross-appeal is only required if a different disposition is sought (Hilton, at para. 12) or if the alternative position would lead to a different judgment (Canada v. Jim Shot Both Sides, 2022 FCA 20, at para. 40 [JSBS]).
....
[13] To conclude, a respondent on an appeal which disagrees with a judge’s treatment of the evidence need not file a cross-appeal unless it is seeking a different disposition of the final order (Berenguer v. SATA Internacional – Azores Airlines, at paras 10-11).
[14] By appealing the Federal Court’s judgment, PIM opened the door for the respondent to advance additional arguments or reasons in support of the judgment appealed from (Kligman v. M.N.R. (C.A.), 2004 FCA 152). That said, the ability of the respondent to do so is not unrestrained. A respondent cannot leverage or exploit its discretion to "“unwind”" other aspects of the judgment for which a notice of cross-appeal ought to have been filed (JSBS, at para 54).
....
[18] In light of this, it is fair to conclude that Hershey does not seek to raise a new argument on appeal nor seek a different disposition of the Federal Court’s judgment; nor does it overreach to unravel other aspects of the judgment unrelated to the question of the admissibility of the fresh evidence. There is likewise no collateral attack, contrary to PIM’s contention. The ruling on admissibility was subsumed in the Federal Court’s reasons for judgment and may be challenged in Hershey’s responding memorandum. There is nothing collateral or indirect about this.
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