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Appeals - Time Extension to Commence Appeal (2)

. Teefy Developments (Bathurst Glen) Limited v. Sun

In Teefy Developments (Bathurst Glen) Limited v. Sun (Ont CA, 2022) the Court of Appeal noted that a motion to extend time is discretionary on the motion judge:
[4] The decision of a single judge on a motion to extend time is an exercise of discretion which is entitled to deference on review, absent a demonstrated error in principle or misapprehension of material evidence: Asghar v. Toronto (Police Services Board), 2021 ONCA 338, at para. 6.
. MCC Mortgage Holdings Inc. v. Mundulai

In MCC Mortgage Holdings Inc. v. Mundulai (Ont CA, 2020) the Court of Appeal set out the accepted test for extending time to appeal:
[17] I begin with the request for an extension of time to appeal from the decision of McCarthy J. of July 23, 2019 refusing to set aside the default judgment.

[18] The relevant factors are:
1. Whether the appellant had an intention to appeal within the relevant period

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

3. Any prejudice to the respondent

4. The merits of the appeal

5. Whether the justice of the case requires granting an extension
The governing principle is whether the justice of the case requires that an extension be granted: see Chandra v. Canadian Broadcasting Corporation, 2016 ONCA 448, 349 O.A.C. 93, at paras. 13-14.
. R. v. Brooks

In R. v. Brooks (Ont CA, 2020) the Court of Appeal set out the test for extending time to appeal:
[4] The applicant brings this application for an extension of time to appeal. The deadline for commencing the appeal was over 11 years ago. For the reasons that follow, the application is dismissed.

(b) Analysis

[5] The test on a motion for an extension of the deadline to appeal is well established in this court’s jurisprudence. Factors that may be relevant to the exercise of the court’s discretion include:
(a) whether the applicant formed a bona fide intention to appeal within the appeal period;

(b) whether the applicant has accounted for or explained the delay;

(c) whether the proposed appeal has merit;

(d) the length of the delay;

(e) whether there is any prejudice to the respondent; and

(f) whether the applicant has taken the benefit of the judgment.
See: R. v. Ansari, 2015 ONCA 891, 128 O.R. (3d) 511, at paras. 22-26 and R. v. Menear (2002), 2002 CanLII 7570 (ON CA), 162 C.C.C. (3d) 233 (Ont. C.A.), at paras. 20-21.

[6] Ultimately, “the main consideration is whether the applicant has demonstrated that justice requires that the extension of time be granted”: Menear, at para. 21.
. Kefeli v. Centennial College of Applied Arts and Technology (2002)

In Kefeli v. Centennial College of Applied Arts and Technology (2002) the court sets out the test for extension of time to file an appeal:
[14] In determining whether to extend the time for filing a notice of appeal the court will generally consider whether the appellant formed an intention to appeal within the relevant time period, the length of the delay, any prejudice to the respondent, and the merits of the appeal. The general rule that the appellant must have formed an intention to appeal within the relevant time period and must provide a reasonable explanation for any subsequent delay is subject to a broader principle that an extension should be granted if the justice of the case requires it: Frey v. MacDonald [1] [1].
. Codina v. Canadian Broadcasting Corporation

In Codina v. Canadian Broadcasting Corporation (Ont CA, 2020) the Court of Appeal considered the test for extending time to perfect an appeal:
[1] The moving party moves for an extension of time to perfect her appeal from the October 17, 2019 dismissal of her defamation action following a successful s. 137.1 (“Anti-SLAPP”) motion brought by the responding parties and from the corresponding costs endorsement. The responding parties oppose the moving party’s motion, submitting that she meets none of the well-established criteria for an extension of time.

[2] These well-established criteria include:
i. the continuing intention to appeal during the period required for perfection;

ii. the length of and explanation for the delay;

iii. the prejudice to the respondent; and

iv. the merits of the appeal.
The overarching consideration is whether the justice of the case requires the extension. See Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 4; Auciello v. Mahadeo, 2016 ONCA 414, at para. 12.
. Alaycheh v. Alaycheh

In Alaycheh v. Alaycheh (Div Ct, 2020) the Divisional Court set out the test for extending time for an appeal:
Test on Motion to Extend

[13] The test on a motion to extend time is well-settled, requiring the court to consider:
1. whether a party formed a bona fide intention to appeal within the time limit;

2. prejudice to the responding party as result of the delay;

3. the length of delay and reasons for the delay; and

4. the merits of the proposed appeal.
No one factor is determinative (see LBP Holdings Ltd. v. Hycroft Gold Corp, 2018 ONSC 1794 (S.C.J.) at para 48).

[14] In the recent case of Blake v. Blake, 2019 ONSC 5724 (S.C.J.) Favreau, J. confirmed at para. 12 that ultimately all of the elements of the test are to be considered together, and the overarching consideration is what the justice of the case requires.



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