Simon's Megalomaniacal Legal Resources

Appeals - Dismissal for Delay

The responding party may move before the Registrar, or the Registrar may give notice administratively, to dismiss an appeal for delay [R61.13, R61.13.0.1, R61.16(7-8)].

. Hoffelner v. Whiteley

In Hoffelner v. Whiteley (Ont CA, 2024) the Ontario Court of Appeal dismissed a motion to "set aside the registrar’s order ... dismissing the appeal for delay" [which dismissal was done under R61.13], and to extend time to perfect an appeal:

[10] The test to set aside an order administratively dismissing an appeal is set out in Sickinger v. Sickinger, 2017 ONCA 760, at paras. 13-14. The overriding consideration is the justice of the case, which entails a consideration of the merits of the appeal. Further, the court considers factors analogous to those typically considered on a motion to extend time to appeal: (1) the explanation for not perfecting the appeal within the stipulated timelines; (2) the length of and explanation for the delay; and (3) prejudice to the respondent.

. Clancy v. Farid

In Clancy v. Farid (Ont CA, 2024) the Ontario Court of Appeal dismisses a set aside of a registrar's dismissal of an appeal for delay [under R61.16(5)]:

[27] A Registrar’s order may be set aside by a judge of the appellate court: r. 61.16(5). In the case of a Registrar’s dismissal order made because time limits in the Rules were not complied with (see r. 61.13(1)-(3)), the factors guiding the exercise of the power to set the dismissal aside are those set out in Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 4:

i. Whether the appellant formed a bona fide intention to appeal within the relevant period;

ii. The length of the delay and explanation for the delay;

iii. Whether there is prejudice to the responding parties in granting the order;

iv. Whether the appeal is meritorious; and

v. Whether the “justice of the case” requires it, the justice of the case being the overriding consideration.

See also Hategan v. Frederiksen, 2022 ONCA 217, at para. 41; Jewish Foundation of Greater Toronto (Re), 2022 ONCA 581, 1 C.B.R. (7th) 1, at para. 19; Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116, at para. 2.

[28] Although the cases cited do not address a Registrar’s dismissal order that was granted based on the failure to meet a judicial deadline, in my view the same factors remain relevant, but certain of them take on added importance. First, where, as here, the judicial deadline was an extension from that mandated by the Rules and has been tailored specifically to the circumstances of the appeal, heightened attention to the length of, and explanation for, the delay beyond the deadline is warranted. Second, where, as here, the deadline was set to limit prejudice to the respondent, heightened attention to the prejudice caused to the respondent by the further delay is also warranted. Nevertheless, the overriding concern will always be whether the justice of the case requires an extension.

....

iii. The Merits

[38] Determining whether the justice of the case requires an extension includes consideration of the merits of the appeal. The question is not whether the appeal will succeed – it is whether the appeal lacks merit to the extent that, in the circumstances, it is just to deny the appellant the right to proceed with it: Issasi, at para. 10. Depending on their nature, assertions in the notice of appeal might not, on their own, establish that there is any merit to the appeal if there is nothing in the record for the extension motion – a record that can include an affidavit appending material that is proposed to be filed for the appeal[3] – that shows the assertions have enough grounding to qualify as arguable grounds of appeal: 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, at paras. 7-8.

. Kuca v George Brown College of Applied Arts and Technology

In Kuca v George Brown College of Applied Arts and Technology (Div Court, 2024) the Divisional Court considered a long-delayed (ten years) appeal and the operation of R61.13.0.1(1) ['Automatic Dismissal by Registrar for Delay, Divisional Court Appeal'] - the five-year automatic dismissal rule:

[20] For reasons that are not clear, this appeal has sat for ten years and has never been heard despite being perfected in 2013. Rule 61.13.0.1 (1) provides that the registrar shall dismiss an appeal if it is not “set down for hearing” or terminated by any means before the later of the fifth anniversary fo the filing of the notice of appeal and January 1,2021.

[21] The fifth anniversary of the notice of appeal was January 30, 2018. But for the pandemic, this appeal would have been dismissed for delay therefore on the later date January 1, 2021.

[22] It is not clear why the appeal was never heard. The phrase “set down for hearing” does not have a current meaning in the Rules. Parties used to have to take active steps to schedule an appeal hearing. It is done by the court now. Apparently neither Ms. Kuca nor George Brown College did anything to have this appeal heard.

. Robson v. Law Society of Ontario

In Robson v. Law Society of Ontario (Ont CA, 2023) the Court of Appeal considered the status of a registrar's 'administrative dismissal', here in mucky appellate interlocutory proceedings:

[27] Second, properly characterized, the Registrar’s dismissal is neither an order nor a decision within the meaning of r. 61.16(5). The parties agree the Registrar did not make an order so no more need be said on that score. In my view, in dismissing the Review Motion, the Registrar did not make a decision either. The Registrar simply did as the Panel Order dictated and administratively dismissed the Review Motion. It was the Panel that made the decision stipulating that failure to comply with the deadline would result in dismissal of the Review Motion – not the Registrar.

[28] The wording of the email correspondence from the Court staff to the parties confirms this: “As per the [Panel Order], if you did not perfect by that time, the matter would be administratively dismissed” and “[T]he above-noted motion has now been administratively dismissed in accordance with the Panel’s decision dated December 18, 2023” (emphasis added).

[29] I do not accept that Sickinger suggests otherwise. It is correct that, at para. 1 of Sickinger, Brown J.A. refers to the “administrative dismissal” of the appellant’s appeal for delay. However, he immediately defines that act as the “Dismissal Order” and later describes the process the Registrar followed in making the Dismissal Order. The Registrar sent the parties a Notice of Intention to Dismiss for Delay, advising them the appeal would be dismissed unless perfected within a specific time. When the appeal was not perfected in time, the Registrar issued the Dismissal Order: Sickinger, at paras. 16-17. Therefore, in Sickinger, as the affected party, the appellant could move under r. 61.16(5) to set aside the Registrar’s order.

[30] It is somewhat unfortunate that the January 4, 2024 Email indicated that if Mr. Robson intended to perfect the Review Motion, a single judge motion to reopen and extend the deadline to perfect could be filed with the Court. However, jurisdiction can often be a tricky matter, as the long-standing debate between interlocutory and final matters exemplifies. In any event, it is for the Court to decide whether it has jurisdiction. For the reasons given, in my view, a single judge lacks jurisdiction to hear the Current Motion.

. R. v. S.M.C.

In R. v. S.M.C. (Ont CA, 2023) the Court of Appeal had earlier sent a criminal appeal matter to 'Purge Court', which - not practicing criminal law - I have never heard of before. However the court withdrew that earlier order and ordered the appeal dismissed as abandoned for delay:

[13] At that time, despite his non-compliance, the lack of perfection of the appeal, the repeated warnings and no change in the status, the appellant indicated that it was not his intention to abandon his appeal. Rather, he stated that he had a two-hour Legal Aid certificate for an opinion on the merits of his appeal. This was the first that the Crown had heard of any Legal Aid certificate, and Mr. Achampong offered that the first he heard of it was that afternoon.

[14] Our system of justice cannot operate effectively if directions and orders designed to advance a party’s appeal are flouted and ignored. The conduct of this appeal is unfair to all justice system participants be they opposing counsel, members of the judiciary or court administration, complainants, or other litigants wanting to have their cases heard. See also R. v. Villanti, 2020 ONCA 436, 151 O.R. (3d) 289.

[15] Rarely will an appeal be deemed to be abandoned over the appellant’s objection. However, here the non-compliance has been egregious, warnings have been repeatedly disregarded, and the court has no confidence that this appeal will be advanced. We conclude from the inactivity that the appeal should be deemed to be abandoned as the Crown requests. Accordingly, we order that the appeal be dismissed as abandoned.

[16] Following oral argument, we ordered that the matter be adjourned to the February 24, 2023 Purge Court pending release of these reasons. Given our order that the appeal be dismissed as abandoned, such an attendance is unnecessary, and that date is vacated.

. Capreit Limited Partnership v. Hume and McFarlane

In Capreit Limited Partnership v. Hume and McFarlane (Div Court, 2022) the Divisional Court judge, finding that there were rules for dismissing an appeal for delay by a Registrar, but none by a judge, applied the Registrar rules by analogy:

[10] Subrule 61.13(3.1) authorizes the Registrar to dismiss an appeal for delay. While the Rules do not specifically address a judge’s authority to dismiss an appeal for delay, r. 1.04(2) provides that where matters are not provided for in the Rules, the practice shall be determined by analogy to them. I find that I am able to dismiss the within appeal for delay by analogy given that the appellant has failed to perfect its appeal and is otherwise in default of this Court’s directions. ...

. Hategan v. Frederiksen

In Hategan v. Frederiksen (Ont CA, 2022) the Court of Appeal considers the test for setting aside an administrative dismissal of an appeal for delay, and denying an extension of time to perfect the appeal:

[41] The relevant factors on this motion to extend the time to perfect an appeal and to set aside a Registrar’s dismissal are not in dispute: Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 4. They are:

1. whether the appellant formed an intention to appeal within the relevant period;

2. the length of the delay and explanation for the delay;

3. any prejudice to the respondent;

4. the merits of the appeal; and

5. whether the “justice of the case” requires it.

. Sheth v. Randhawa

In Sheth v. Randhawa (Ont CA, 2022) the Court of Appeal considered a motion to set aside a clerk's dismissal for delay of an appeal:

The test for setting aside an administrative dismissal for delay and extending the time for perfection

[15] The test on a motion of this kind is well-established. The ultimate question is whether the justice of the case warrants the order requested. Factors to be considered in making the decision are: (i) whether the appellant formed an intention to appeal within the appeal period; (ii) the length of the delay; (iii) the explanation for the delay; (iv) the merits of the proposed appeal; and (v) prejudice to the responding parties. See, for example, Paulsson v. University of Illinois, 2010 ONCA 21, at para. 2; Krawczynski v. Ralph Culp and Associates Inc., 2019 ONCA 399, 69 C.B.R. (6th) 163, at para. 9; Frey v. MacDonald (1989), 33 C.P.C. (2d) 13 (Ont. C.A.), at p. 14; Enbridge Gas Distribution v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.

The balance of the case [paras 16-57] is a useful walk-through of these criteria on the facts of the case.

. Kudrocova v. Kronberger

In Kudrocova v. Kronberger (Ont CA, 2021) the Court of Appeal considered the test for setting aside a Registrar's dismissal for delay:

[6] The factors to consider on a motion to set aside a Registrar’s dismissal are 1) whether the moving party had an intention to appeal within the time for bringing an appeal; 2) the length of the delay and any explanation for the delay; 3) any prejudice to the respondent caused by the delay; and 4) the justice of the case: Paulsson v. University of Illinois, 2010 ONCA 21, at para. 2. The overriding consideration on a motion to set aside a dismissal order is the justice of the case, which can include consideration of the merits of the appeal: Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731, at para. 8 (in that case the appeal raised serious issues).

. Kandolo-Kwabanza v College of Physicians and Surgeons of Ontario

In Kandolo-Kwabanza v. College of Physicians and Surgeons of Ontario (Ont CA, 2014) the Court of Appeal set out the factors to be applied when deciding that an appeal should be dismissed for delay in it's perfection (serving and filing the extensive final paperwork required before an appeal is scheduled for hearing):

[3] In her detailed endorsement, Gillese J.A. applied the well-known factors a court should consider in deciding whether to set aside a Registrar’s order for failure to perfect an appeal; namely, whether the applicant had an intention to perfect within the time allotted, the length of the delay, any explanation for the delay, any prejudice to the responding party caused by the delay, and the justice of the case.