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Appeals - Time Extension for Leave to AppealThe test for extending time with a motion for leave to appeal appears to be pretty much the same as that for extending time on a normal (non-leave) appeal.
. Froom v. Lafontaine
In Froom v. Lafontaine (Div Court, 2024) the Divisional Court dismissed a motion to extend time to seek leave to appeal. Here the court sets out a test for time extension, and walks through some of the related case facts informing that test:Legal Principles
[10] When considering whether to grant an extension of time, the overarching principle is whether the justice of the case requires it. The court will consider all the circumstances of the case, including:a. Whether the moving party formed a bona fide intention to appeal within the relevant time period;
b. The length of, and explanation for, the delay in filing;
c. Any prejudice to the responding parties caused, perpetuated, or exacerbated by the delay; and
d. The merits of the proposed appeal.
828343 Ontario Inc. v. Demshe Forge Inc., 2022 ONCA 412, at para. 21 [11] The decisions Mr. Froom seeks to challenge are interlocutory and require leave of this court before they may be appealed. The test for granting leave to appeal is strict. Leave to appeal is not easily granted. As set out in r. 62.02(4), leave to appeal shall not be granted unless:a. there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the panel hearing the motion, desirable that leave be granted; or
b. there appears to the panel hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted. Analysis
First and Second Considerations
[12] Ms. Lafontaine submits that Mr. Froom did not have a bona fide intention to appeal within the relevant time frame. She emphasizes that he is an experienced, albeit self-represented, litigant and should have been able to determine that he had 15 days to seek leave to appeal. In her submission, his explanation about waiting for the costs decision does not make sense, since the costs decision had not been issued when he ultimately filed his notice of motion.
[13] In my view, although Mr. Froom has raised various sources of possible confusion, he has not demonstrated he had a bona fide intention to appeal during the 15-day time period. However, the delay was not excessive and there was some basis for confusion, both as a self-represented litigant and considering the subsequent attendances before Faieta J. I would not dismiss the motion based on these factors.
Third Consideration - Prejudice
[14] Ms. Lafontaine submits in high conflict litigation, an extension of time should not be granted since an appeal would cause the parties to devote further time and expense to an interlocutory issue when various issues remain to be determined on a final basis at trial: MacMillan v. Klug, 2024 ONSC 1125, at para. 16.
[15] Although this does not demonstrate specific prejudice caused by the delay in filing the notice of motion, I agree it is a factor weighing against Mr. Froom with respect to the overall justice of the case. In his October 10 endorsement, the motion judge, who was heavily involved in managing this case, raised specific concerns about delay. As Ms. Lafontaine has emphasized, the family law proceeding was started in 2013. Pursuant to an endorsement in 2022, Mr. Froom was required to set the matter down for trial by December 29, 2023. This date is now well past, and the matter has not been set down for trial. In these circumstances, avoiding further delay should be prioritized.
Fourth Consideration - Merits
[16] The primary basis on which I deny an extension of time is that the motion for leave to appeal has little merit. The Court of Appeal has stated 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”: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 16; Hughes v. Hughes, 2021 ONSC 4497, at para. 21.
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Justice of the Case
[22] Given the lack of merit to the proposed motion for leave to appeal and the need for this matter to move forward to trial without further delay, the justice of the case does not favour granting an extension of time. . Imona-Russel v. JD Ekpenyong
In Imona-Russel v. JD Ekpenyong (Div Court, 2024) the Divisional Court considers (and dismisses) a motion to extend time to move for leave to appeal, here where the applicant "delivered his material to the incorrect office" but the court found that the appeal was without merit:[9] On a motion for leave to extend the time to bring a motion for leave to appeal, the court should consider:(a) Whether the moving party formed an intention to appeal within the relevant period;
(b) The length of the delay and the explanation for it;
(c) The prejudice to the responding party;
(d) The merits of the appeal; and
(e) The governing principle of whether the justice of the case requires that an extension be given. See: Van de Kerckhove v. Wagner, 2022 ONSC 5780 at paras 10-11; Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 554 at para 2.
[10] The presence or absence of merits of an appeal may be dispositive on a motion to extend time. Obtaining leave to appeal an interlocutory order requires meeting the test found in Rule 62.02(4), of the Rules of Civil Procedure, which requires that an appellant establish:(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is desirable that leave to appeal be granted; or
(b) there appears to be good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted. [11] I accept from the correspondence filed that the applicant formed the intention to appeal the decision of Charney, J. within the requisite time period, and took steps, albeit to the wrong court address to seek leave to appeal that decision.
[12] However, in reviewing the endorsement which is procedural in nature and founded in uncontested facts: the manner of service of the motion for default judgment and the application of the Rules of Civil Procedure to those facts and the grounds for appeal, I find that there is no merit to the appeal. The applicant has cited no conflicting decisions. There is nothing in the applicant’s grounds to suggest that the case involves matters of such importance that a leave panel would grant leave. The grounds express the applicant’s dissatisfaction with the motion judge’s decision, but do not raise any issues on which I can find there are any reasons to doubt the correctness of the decision.
[13] On balance, I conclude that the justice of the case does not weigh in favour of granting the extension sought to seek leave to appeal the interlocutory decision of Charney, J. . MacMillan v. Klug
In MacMillan v. Klug (Div Court, 2024) the Divisional Court considered (and denied) a parenting motion by a self-presenter to extend time to file leave to appeal, the need for which was caused by the appellant's confusion between the 15-day timeline for leave motions and the 30-day timeline for as-of-right appeals:Analysis
[7] On a motion for leave to extend the time to bring a motion for leave to appeal, the court should consider:(a) Whether the moving party formed an intention to appeal within the relevant period;
(b) The length of the delay and the explanation for it;
(c) The prejudice to the responding party;
(d) The merits of the appeal; and
(e) The governing principle of whether the justice of the case requires that an extension be given. See: Van de Kerckhove v. Wagner, 2022 ONSC 5780 at paras 10-11; Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 554 at para 2.
[8] Mr. MacMillan was two weeks late serving his motion for leave to appeal. He states in his material that he formed the intention to appeal within the time allotted, given that the length of the delay is two weeks.
[9] Mr. MacMillan explains the two week delay by stating he was confused about the time he had to appeal, and he was affected by his need to surrender into custody for two days during the running of the appeal period. [1]However, the notice of motion for leave to appeal was served and filed on October 20, 2023. The length of the delay, the appeal and Mr. MacMillan’s status as a self-represented individual are some evidence that support a finding he formed an intention to appeal within the 15 day period, and that he missed doing so for valid reasons.
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[12] The presence or absence of merits of an appeal may be dispositive on a motion to extend time. ...
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[16] Finally, there is the justice of the case. In high conflict family litigation, the courts have found that an extension of time may not be appropriate where the appeal will cause the parties to devote further time and expense to an appeal of a temporary order, when the issues remain to be determined on a final basis at trial: see Hassan v. Dahroug, 2022 ONSC 5506 at para 21; Van de Kerckhove v. Wagner, 2022 ONSC 5780 at paras 20, 23. This is demonstrably a high conflict case and I apply this principle.
[17] I conclude that although the delay is not a lengthy delay, and that Mr. MacMillan explained the delay with reference to his confusion, that the merits, prejudice to the respondent and the justice of case outweigh these factors. I dismiss the motion. Costs are awarded in favour of the respondent, Ms. Klug, in the amount of $1,500 all inclusive. . Efthymiadis v. Universal Protection Service of Canada Corp.
In Efthymiadis v. Universal Protection Service of Canada Corp. (Div Court, 2022) the Divisional Court considered the test for extending time for a leave to appeal motion, here from an interlocutory order [R62.02(4)]:[4] Rule 61.03(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that where leave to appeal to the Divisional Court is required, the notice of motion for leave must be served within 15 days of the making of the order from which leave to appeal is sought. Pursuant to Rule 3.02 of the Rules, the court may exercise its discretion to extend the time for service of a notice of motion for leave to appeal.
[5] The test that the moving party must meet for an extension of time to file a notice of appeal is well-settled. In deciding whether to exercise its discretion to grant an extension of time, the court will consider the following factors:(a) Whether the Appellant formed an intention to appeal within the relevant period;
(b) The length of the delay and explanation for the delay;
(c) Any prejudice to the Respondent;
(d) The merits of the appeal; and
(e) Whether “the justice of the case” requires it.
Heliotrope Investment Corp. v. 1324789 Ontario Inc., 2021 ONCA 23, at para. 24. [6] The Court of Appeal has further held that while courts consider different factors, the governing principle is whether the “justice of the case” requires than an extension be given: Heliotrope Investment, at para. 25.
[7] On a motion to extend the time to seek leave to appeal, the same test is applied. The court must consider the merits of the motion for leave to appeal, as opposed to the merits of the appeal itself: Samuels v. Canada (Attorney General), 2016 ONSC 6706, at para. 20.
[8] Rule 62.02(4) states that “leave to appeal from an interlocutory order shall not be granted unless”:a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the panel hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the panel hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted. . Hassan v. Dahroug
In Hassan v. Dahroug (Div Court, 2022) the Divisional Court considered extending the time for commencing leave to appeal:[4] Rule 61.03(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that where leave to appeal to the Divisional Court is required, the notice of motion for leave must be served within 15 days of the making of the order from which leave to appeal is sought. Pursuant to r. 3.02 of the Rules, the court may exercise its discretion to extend the time for service of a notice of motion for leave to appeal.
[5] In granting an extension of time, the court considers the following four factors identified by Swinton J. in Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 554:. Whether the moving party formed an intention to appeal within relevant period;
. The length of the delay and the explanation for it;
. The prejudice to the responding party; and
. The merits of the appeal. [6] The governing principle is whether the justice of the case requires that an extension be given: Canadian Western Trust Co. v. 1324789 Ontario Inc., 2021 ONCA 23, at para. 24. . Sanvictores v. Sanvictores
In Sanvictores v. Sanvictores (Div Court, 2022) the Divisional Court set out the test for extending time to make a motion for leave to appeal:[16] That said, it is open to a party to seek an extension in the time in which to seek leave to appeal a temporary order. The test for obtaining an extension is stringent:i. Whether the appellant formed an intention to appeal within the relevant time period;
ii. The length of the delay and the explanation for the delay;
iii. Prejudice to the respondent;
iv. The merits of the appeal; and
v. Whether the justice of the case requires the granting of an extension See Wellwood v. Ontario, 2010 ONCA 386; Rizzi v. Mavros, 2007 ONCA 350. . 828343 Ontario Inc. v. Demshe Forge Inc.
In 828343 Ontario Inc. v. Demshe Forge Inc. (Ont CA, 2022) the Court of Appeal discerns different types of 'delay' within the extension of time test, here with respect to a leave to appeal motion:[21] The test on a motion to extend time is well-settled: see, for example, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. The overarching principle is whether the “justice of the case” requires that an extension be given. While each case depends on its own circumstances, in deciding whether the justice of the case warrants the extension of time, the court is to take into account all relevant considerations (the “Considerations”), including:a) whether the moving party formed a bona fide intention to appeal within the relevant time period;
b) the length of, and explanation for, the delay in filing;
c) any prejudice to the responding parties caused, perpetuated, or exacerbated by the delay; and
d) the merits of the proposed appeal. ....
[32] On the issue of merit, this court’s decision in Ticchiarelli v. Ticchiarelli, 2017 ONCA 1 – relied on by the Divisional Court – is a full answer. The motion judge fell afoul of the dictates in Ticchiarelli because he blended the concepts of inordinate delay and excusable delay when concluding that the nine-year delay between the commencement of the action and the motion to dismiss for delay was not inordinate. After the Divisional Court identified the motion judge’s error, it fell to that court to properly apply the principles in Ticchiarelli. This also disposes of the submission that the Divisional Court substituted its own findings on excusability for those of the motion judge without a finding of a palpable and overriding error. The motion judge’s error was not a factual finding, subject to the palpable and overriding error standard. The error related to a principle of law and was reviewable on a correctness standard. . Carleton Condominium No. 28 v. Bassi Construction Ltd.
In Carleton Condominium No. 28 v. Bassi Construction Ltd. (Div Ct, 2022) the Divisional Court considered extending the time to file a leave to appeal motion:[3] The test on a motion to extend time to bring a motion for leave to appeal is well-settled, and was stated by Gillese J.A. in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 at para. 15:The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:
(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;
(b) the length of, and any explanation for the delay in filing;
(c) any prejudice to the responding parties caused, perpetuated or exacerbated by the delay; and
(d) the merits of the proposed appeal. ....
[9] In considering the issue of prejudice, the relevant consideration is not prejudice resulting from the progress of the actual appeal or motion for leave to appeal, but rather the prejudice that would be caused from the delay in filing the notice of appeal or motion for leave to appeal: 40 Park Lane Circle v. Aiello, 2019 ONCA 451 at para. 6.
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[14] In the context of a motion to extend time to seek leave to appeal, a court should only engage in a limited analysis of the merits of the proposed appeal. This Court has described the threshold as being “satisfied that the appeal has some merit”: Alaycheh v. Alaycheh, 2020 ONSC 6006 (Div. Ct.) at paras. 29, 33, 34.
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[17] In this case, the moving party relies on the second branch of the test for leave. Under the second branch of the test for leave to appeal, the assessment of correctness by the leave panel does not involve deciding if the decision from which leave was sought was wrong; rather, the panel need only consider whether the correctness of the decision is open to very serious debate. The leave panel must also consider if the proposed appeal raises issues of general importance: Samuels v. Canada (Attorney General), 2016 ONSC 6706 (Div. Ct.) at para. 23; Ash v. Lloyd’s Corp, 1992 CanLII 7652 (Gen. Div.). . Krawczynski v. Ralph Culp and Associates Inc.
In Krawczynski v. Ralph Culp and Associates Inc. (Ont CA, 2019) the Court of Appeal set out the test for extending time for perfection of leave to appeal:(1) Test on a motion for an extension of time
[9] Pursuant to r. 3.02(1), this court may extend any time limit prescribed by the Rules of Civil Procedure on such terms as are just. In Issai v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 4, Weiler J.A. identified the following five factors as relevant in determining whether to grant an extension of time to perfect an appeal:(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. [10] A motion to extend the time for leave to appeal in the bankruptcy context was discussed by Strathy J.A (as he then was) in Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd., 2014 ONCA 500, 17 C.B.R. (6th) 91, at paras. 2 and 26:Rule 31(1) of the Bankruptcy and Insolvency General Rules, C.R.C., c. 368, provides that a notice of appeal must be filed within ten days after the day of the order appealed from or within such further time as a judge of this court stipulates.
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The overarching principle is whether the justice of the case requires that an extension be granted. The relevant factors may include:
(a) whether the applicant had a bona fide intention to appeal before the expiration of the appeal period;
(b) the length of and explanation for the delay in filing;
(c) any prejudice to the responding parties caused by the delay; and
(d) the merits of the proposed appeal.
See Howard v. Martin, 2014 ONCA 309 (CanLII); Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 (CanLII), 114 O.R. (3d) 636. See also Braich (Re), 2007 BCCA 641 (CanLII). [11] This approach was adopted by this court in National Telecommunications Inc. v. Stalt Telcom Consulting Inc. (2018), 64 C.B.R. (6th) 169. At para. 17 Simmons J. A. stated:…the overriding consideration is whether the justice of the case requires an extension and that the enumerated factors are both non-exclusive and may vary in importance depending on the circumstances. . Maracle III v. Miracle
In Maracle III v. Miracle (Ont CA, 2017) 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. . Deo v. Sheasby-Coleman
In Deo v. Sheasby-Coleman (Div Ct, 2021) the Divisional Court set out the test for extending time to move for leave to appeal:[17] As held in The Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 554, at para 2, the test to be applied on a motion to extend the time to bring a motion for leave to appeal is as follows:In granting an extension of time, the court considers four factors. The overarching consideration is the justice of the case. Those factors are:
1. whether the moving party formed an intention to appeal within the relevant period;
2. the length of the delay and the explanation for it;
3. prejudice to the responding party; and
4. the merits of the appeal.
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