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Appeals - Time Extension to Commence Appeal (2). Soo Mill & Lumber Company Ltd. v. Pozzebon et al.
In Soo Mill & Lumber Company Ltd. v. Pozzebon et al. (Div Court, 2023) the Divisional Court considered a motion to extend time to commence an appeal - here with an unusual jurisdictional litigation background in the Court of Appeal directed primarily at preserving the party's appeal rights:[13] The test for granting an extension of time is well-settled and not disputed by the parties. As Gillese J.A. stated 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 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. [14] The respondents do not dispute that Soo Mill formed a bona fide intention to appeal within the time period. Indeed, the evidence is very clear that they did so.
[15] The explanation for the delay has been set out above and is reasonable. Although the respondents point out that they raised the jurisdiction issue early on, their failure to move promptly to quash the appeal and, moreover, their work to respond to the merits of the appeal by responding to it fully in the Court of Appeal, demonstrates that the jurisdictional question was very much a live issue.
[16] There is also little or no prejudice to the responding parties caused by the delay. Indeed, the failure to move to quash the appeal lays some of the blame for the delay with the respondents. Further, as arguments on the merits of the appeal were prepared for the Court of Appeal, those materials should be readily adaptable to an appeal in this Court.
[17] The respondents submit that they will be prejudiced because Soo Mill is seeking execution before judgment, wishing to tie up funds as security for a judgment it may or may not be able to obtain. This, however, is not prejudice arising from extending time to file a notice of appeal but relates to the merits of the appeal.
[18] This leaves the issue of the merits of the appeal, which the respondents argue should carry the day and result in denying the extension of time.
[19] I do not agree. There is no question that a motion for an extension can be dismissed solely on this branch of the test. In Enbridge, the court dismissed a motion on this basis. That case involved a request to extend time for filing a motion for leave to appeal and considered the test to be met for granting leave, which is a high one. It requires, among other things, that “the proposed appeal presents an arguable question of law, or mixed law and fact, requiring consideration of matters such as the interpretation of legislation; the interpretation, clarification or propounding of some general rule or principle of law; the interpretation of a municipal by-law where the point in issue is a question of public importance; or the interpretation of an agreement where the point in issue involves a question of public importance”: Enbridge at para. 20.
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[23] In my view, the justice of the case requires that the motion to extend time be granted. There is no demonstrated prejudice to the respondents, and the other factors on a motion to extend time clearly favour the moving party, therefore the motion is granted. . Grasshopper Solar Corporation v. Palmer
In Grasshopper Solar Corporation v. Palmer (Ont CA, 2023) the Court of Appeal considered a novel commercial tenancy arrangement whereby the respondent tenant rented residential rooftops for the purpose of generating solar energy and feeding it back into the electrical grid for profit.
In these quotes the court considered a 'time to commence appeal' and a related 'extension of time' issue, here where the lower court first issued a ruling on the summary judgment and then several months later a separate ruling on a damages reference:[11] Prior to considering the appellants’ grounds of appeal against the summary judgment decision, it is necessary to address Grasshopper’s position that the appeal is late and should not be considered. The appellants served their notice of appeal at the end of September 2021 within 30 days of the decision on damages, discussed below. According to Grasshopper, the appellants acknowledge that they appealed from the decision of the motion judge dated March 8, 2021, and therefore were beyond the 30-day time period for serving a notice of appeal set out in r. 61.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[12] We reject this submission. It was appropriate for the appellants to wait until after the damages decision before deciding to appeal the motion judge’s orders both on the summary judgment and damages. Grasshopper also objects to the appellants’ appeal of the damages decision on related timing grounds, which is addressed below.
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[25] As a preliminary matter, Grasshopper raises the issue that the damages decision is time-barred because it was not served within the appropriate deadlines. The appealed-from damages decision was pronounced on August 25, 2021, and its corresponding order was issued on September 27, 2021. The appellants’ notice of appeal specifically appealed the August 25 damages decision. That notice of appeal was served on September 24, 2021, within the 30-day time period. There was no delay here.
[26] The respondent argues that the appellants’ supplementary notice of appeal was late. It was served on November 16, 2021, over a month and a half after a notice of appeal was due on the August 25 damages decision. The supplementary notice of appeal did not add new details concerning the appeal of the damages decision, but it did include a request for an extension of time for the service and filing of the notice of appeal and the supplementary notice of appeal. The respondent takes this request for an extension as evidence that the appeal is late. We do not agree.
[27] There was no question with respect to the appellants intention to appeal within the 30-day timeframe. There was a clear explanation for the supplemental notice of appeal in light of the subsequent September 27, 2021 order by the motion judge, and there no prejudice resulting from the additional period between the original notice of appeal and the supplemental notice. In light of this court’s test for extensions of time, the appellants’ requested extension of time is granted: Paulsson v. University of Illinois, 2010 ONCA 21, at para. 2. . Lee v. Padathe
In Lee v. Padathe (Div Court, 2023) the Divisional Court considered the test for extending time to commence a civil appeal:[8] The test to determine whether an extension of time should be granted is set out in Enbridge Gas Distribution v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. The overarching question is whether the justice of the case requires that an extension be given. In answering the question, the court is to take into account all relevant considerations, including the following:(1) Whether the moving party formed a bona fide intention to appeal within the appeal period;
(2) The length of, and explanation for, the delay in filing;
(3) Any prejudice to the responding party caused, perpetuated or exacerbated by the delay; and
(4) The merits of the proposed appeal. [9] A lack of merit to the proposed appeal can, on its own, justify denying an extension of time: Enbridge, at para. 16. . Stanley v. Lucchese
In Stanley v. Lucchese (Ont CA, 2023) the Court of Appeal cites the standard test for extending time to commence an appeal, here in an unusual situation where the delay was over 18 months (an extension was granted):[9] The test for obtaining an extension of time is well-established. In general, the court considers five factors when exercising discretion to grant or deny an extension of time:i) whether the appellant formed an intention to appeal within the relevant time period;
ii) the length of and explanation for the delay;
iii) prejudice to the respondent;
iv) the merits of the appeal; and
v) as an overarching consideration, whether “the justice of the case” supports an extension. For example, see Echelon Environmental Inc. v. Glassdoor Inc., 2021 ONCA 763, at paras. 9-10.
[10] Here the timelines under consideration are set out in rule 61.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). They require that an appellant serve a notice of appeal within 30 days “after the making of the order appealed from” and file the notice of appeal within 10 days after service. At paras 11-35 the court walks through this time extension test on the facts of this unusual case.
. Attorney General of Ontario v. Hazout
In Attorney General of Ontario v. Hazout (Div Court, 2023) the Divisional Court cited recently sympathetic (2022) law regarding extending time to commence an appeal:The test for extending time to appeal
[6] The test on a motion to extend time is well-settled and was recently summarized by Simmons J.A. in Sheth v. Randhawa, 2022 ONCA 89, at para. 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. [7] Despite this apparent multi-factor test to assist in determining whether the justice of the case warrants an extension, the Court of Appeal has also recently stated that “even where it is difficult to see the merits of the proposed appeal, a party should not be deprived of their right of appeal when there is no real prejudice to the other side”: Correct Building Corporation v. Lehman, 2022 ONCA 723 at para. 15, citing 40 Park Lane Circle v. Aiello, 2019 ONCA 451 at para. 8.
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[16] An application of the factors makes this a close call. Unlike the facts of 40 Park Lane Circle and Correct Building, where the delay was minimal and reasonably explained, the delay here is much greater and the explanation for the delay is weak. However, the recent emphasis placed by the Court of Appeal on the presence of any possible merit to an appeal appears to compel an order granting the extension. As stated in Correct Building at para. 11:Traditionally, the merits factor will be used to support granting an extension when the other factors do not favour the applicant, but because there may be some potential merit to the case, it is still in the interests of justice that the applicant's right of appeal not be removed, just because of lateness: see e.g ., Howard v. Martin, 2014 ONCA 309, 42 R.F.L. (7th) 47, at para. 36; Derakhshan v. Narula, 2018 ONCA 658, 142 O.R. (3d) 535, at para. 22. More recently, in 40 Park Lane Circle v. Aiello, 2019 ONCA 451, at para. 8, van Rensburg J.A, sitting as a motion 2022 ONCA 723 (CanLII) judge, stated:Turning to the merits of the proposed appeal, the question is only whether there is "so little merit in the proposed appeal that the appellant should be denied [his] important right of appeal": Duca Community Credit Union Ltd. v. Giovannoli (2001), 2001 CanLII 24017 (ON CA), 142 O.A.C. 146 (C.A.), at para. 14. Even where it is difficult to see the merits of a proposed appeal, a party is entitled to appeal and should not be deprived of that entitlement where there is no real prejudice to the other side: Denomme, at para. 10; Auciello v. Mahadeo, 2016 ONCA 414, at para. 14. . Hill v. Cambridge (City)
In Hill v. Cambridge (City) (Ont CA, 2023) the Court of Appeal considers the test for extension of time to commence an appeal:[4] The overarching consideration on this motion is whether the justice of the case warrants the extension. Relevant factors informing this determination generally include: whether Ms. Hill had the intention to appeal within the requisite period for commencing an appeal; the length of and explanation for the delay in appealing; any prejudice to the responding parties because of the delay; and the merits of the appeal: Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, at para. 11.
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[7] In assessing the merits of Ms. Hill’s proposed appeals, I must determine whether the appeals have so little merit that she should be denied the important right of appeal: Sabatino, at para. 20. I have determined that is the case here.
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[13] In my view, this is one of those occasions where the lack of merit in these proposed appeals is so clear-cut that, having regard to this factor on its own, and when considered in combination with the other factors that I have just considered, leave to extend the time for appealing should not be granted: Sabatino, at para. 21. . Latham v. Marazzi
In Latham v. Marazzi (Div Court, 2022) the Divisional Court considered the 'merits' element of the test for extending time to commence an appeal:[7] As set out in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 15, the test on a motion to extend time for filing a Notice of Appeal is well settled. The overarching principle is whether the justice of the case requires that an extension be given. The Court is to take into account all relevant considerations, including:(1) Whether the moving party formed a bona fide intention to appeal within the appeal period;
(2) The length of, and explanation for the delay in filing;
(3) Any prejudice to the responding party caused, perpetuated or exacerbated by the delay; and
(4) The merits of the proposed appeal. ....
Merits
[15] The test for the proposed appellant to demonstrate merit to the appeal is not stringent. As set out in Duca Community Credit Union Ltd. v. Diovannoli, 2001 CanLII 24017 and reproduced in Go Fleet Corporation v. So, 2021 ONSC 2199, where there is a right of appeal, the question is whether there is “so little merit to the proposed appeal that the appellant should be denied [his] important right of appeal.” . Buduchnist Credit Union Limited v. 2321197 Ontario Inc.
In Buduchnist Credit Union Limited v. 2321197 Ontario Inc. (Ont CA, 2022) the Court of Appeal considered extending time to commence an appeal:[27] Whether I grant TC’s motion for an extension to file its appeal depends upon whether the “justice of the case” requires it: Heliotrope Investment Corporation v. 1324789 Ontario Inc., 2021 ONCA 23, at para. 25, citing Chandra v. Canadian Broadcasting Corp., 2016 ONCA 448. In making that determination, I am to consider all relevant circumstances, with attention to: (1) whether TC formed an intention to appeal within the relevant appeal period; (2) the length of, and explanation for the delay; (3) prejudice to BCU; and (4) the merits of the appeal. . Jewish Foundation of Greater Toronto (Re)
In Jewish Foundation of Greater Toronto (Re) (Ont CA, 2022) the Court of Appeal considered a time extension to perfect an appeal, here the issue of merits of the appeal:[29] In any event, even where it is difficult to see the merits of a proposed appeal, a party should not be deprived of the right to appeal where there is no real prejudice to the other side: Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, at para. 20. . Jewish Foundation of Greater Toronto (Re)
In Jewish Foundation of Greater Toronto (Re) (Ont CA, 2022) the Court of Appeal considered a time extension to perfect an appeal, here the issue of prejudice:[26] Possible prejudice to the Jewish Foundation – Prejudice figures largely in determining whether the court should set aside a registrar’s dismissal for delay: MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28, 124 O.R. (3d) 420, at para. 24. The court must consider any prejudice to the respondent’s ability to defend the appeal that would arise from steps taken following its dismissal or that would result from its restoration: MDM, at para. 25. . Jewish Foundation of Greater Toronto (Re)
In Jewish Foundation of Greater Toronto (Re) (Ont CA, 2022) the Court of Appeal considered a time extension to perfect an appeal, here the role of counsel in creating the need for the extension:[25] The delay in attempting to perfect was short. The problem that prevented the JLCF from perfecting was minor and has been remedied. Further, as a general principle, the client “should not suffer the consequences of [its] lawyer’s oversight or inattention”: Kudrocova v. Kronberger, 2021 ONCA 563, at para. 10. For these reasons, I am satisfied with the JLCF’s explanation for the delay. . 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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