|
Appeal - Time - Extension to Commence (3). Gandhi v. Mayfield Arcadeium Holdings Ltd.
In Gandhi v. Mayfield Arcadeium Holdings Ltd. (Div Court, 2023) the Divisional Court considers (and allows) a time extension to commence an appeal, here under Construction Act s.71 ['Appeal to Divisional Court'] - with a 15-day limit and extension authority [under 71(2)], though the court applied RCP 'time extension to commence an appeal' standards.
In these quotes the court, the court considers these issues and the nature of construction liens:The Proposed Appeal
[14] As set out below, Mr. Gandhi failed to exercise his statutory right to appeal the Judgment within the 15-day period as prescribed by the Act.
[15] In submissions, both sides acknowledged that an appeal from the Judgment lies to the Divisional Court pursuant to ss. 71(1) of the Act, which provides:Appeal to Divisional Court
71 (1) Except as otherwise provided in this section, an appeal lies to the Divisional Court from a judgment or an order on a motion to oppose confirmation of a report under this Act. [16] The term “judgment” as set out in ss. 71(1) applies to any decision by which a party’s rights are finally disposed of: Villa Verde L.M. Masonry Ltd. v. Pier One Masonry Inc., 2001 CanLII 7060 (ONCA) at para 8; Heinrichs v. 374427 Ontario Ltd., 2018 ONSC 78 (Div Ct) at para 19.
[17] A declaration that a lien has expired pursuant to s. 45 of the Act is a final order, as the declaration is irrevocable and an expired lien cannot be revived: Mobilinx Hurontario Contractor v. Edge 1 Equipment Rentals Inc., 2023 ONSC 5885 at para 12. In addition, an order releasing funds held in counsel’s trust account as an alternative form of security in lieu of a claim for lien is a final order: Heinrichs at paras 12 and 18-20.
[18] In this case, the Judgment declared that the claim for lien had expired, cancelled the Lien Bond, and ordered its return to Mayfield. Having regard to the above-noted authorities, I accept that the Judgment is final and may be appealed to the Divisional Court under ss. 71(1) of the Act.
[19] Although Mr. Gandhi had a statutory right to appeal the Judgment released on October 5, 2023, he was required to deliver his notice of appeal by October 20, 2023 (i.e., within fifteen days from the date of the Judgment) pursuant to ss. 71(2) of the Act, which provides:Notice of Appeal
(2) A party wishing to appeal shall file and serve a notice of appeal within fifteen days of the date of the judgment or order, but the time for filing or serving the notice of appeal may be extended by the written consent of all parties, or by a single judge of the Divisional Court where an appropriate case is made out for doing so. ....
Legal Principles for Extending Time to Deliver a Notice of Appeal
[21] The test on a motion to extend the time for filing a notice of appeal is well established, and is described as follows:[A]ny time limit prescribed by the Rules may be extended on such terms as are just. The factors to be considered in deciding whether to extend time to appeal are: (1) whether the proposed appellant had a bona fide intention to appeal within the prescribed period; (2) the length of and explanation for the appellant’s delay; (3) any prejudice to the respondent from the granting of an extension of time; (4) the merits of the proposed appeal; and (5) whether the justice of the case requires an extension of time. At the stage of considering the justice of the case, the court must consider all of the preceding factors as well as any others that may be relevant, and balance those factors.
690 King Street Corp. v. Desco Plumbing and Heating Supply Inc., 2021 ONSC 1050 (Div Ct) at para 3; 40 Park Lane Circle v. Aiello, 2019 ONCA 451 at para 2. [22] The merit of the proposed appeal is the most important factor to consider: Robson v. Law Society of Ontario, 2023 ONCA 709 at para 5; Paulsson v. University of Illinois, 2010 ONCA 21 at para 2. 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 at para 8; Attorney General of Ontario v. Hazout, 2023 ONSC 1961 (Div Ct) at para 7.
.....
Prejudice
[31] In my view, Mr. Gandhi’s delay in serving the notice of appeal did not prejudice Mayfield in the sense contemplated under the analysis for an extension of time.
[32] In considering the issue of prejudice, the relevant consideration is not prejudice from the progress of the appeal itself which Mr. Gandhi was otherwise entitled to pursue after complying with the 15-day period for serving the notice of appeal. Instead, the relevant consideration is prejudice from the delay in delivering the notice of appeal: 40 Park Lane at para 6; 690 King Street at para 7. In this case, his delay in delivering the notice was 12 days.
[33] Mr. Gandhi had a general right of appeal under ss. 71(1) of the Act. As a result, the issue of whether Mayfield was prejudiced by its inability to enforce the Judgment is not relevant under this branch of the analysis to extend time. In any event, Mayfield could not enforce the Judgment until it was issued and entered on November 17, 2023. By then, Mayfield had been in receipt of Mr. Gandhi’s notice of appeal for 11 days. Taking this into account, I find no prejudice to Mayfield from Mr. Gandhi’s delay in delivering the notice of appeal.
Merits
[34] In my view, Mr. Gandhi’s proposed appeal is not so completely devoid of merit as to justify denying his important right of appeal in this case.
[35] The merits of a proposed appeal can be decisive on a motion to extend the time for filing a notice of appeal, regardless of how the other considerations are factored: Howard v. Martin, 2014 ONCA 309 at para 36. In cases involving a right of appeal, the focus of the merits analysis is on 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 CanLII 24017 (ONCA) at para 14; 40 Park Lane at para 8; 690 King Street at para 9. Where there is no real prejudice to the other side, a party should not be deprived of their right to appeal even when it is difficult to see the merits of the appeal: Correct Building at para 15; Denomme v. McArthur, 2013 ONCA 694 at para 10; 40 Park Lane at para 8; Hazout at para 7; 690 King Street at para 9.
[36] In responding to the motion, Mayfield strongly opposed the 12-day extension by vigorously arguing the merits of the proposed appeal and the litigation as a whole. In turn, the parties spent considerable time on the motion arguing the merits of the proposed appeal and the underlying litigation, particularly on the issue of whether Mr. Gandhi had a contract with Mayfield to ground his lien claim. As the court had not specifically decided this point, Mayfield invited me to find that no such contract had existed and that Mr. Gandhi had no lien rights which left his purported appeal with no real chance of success: see Torty v. Gilina, 2006 CanLII 29666 at paras 59 and 64. However, Van Rensburg J.A. strongly cautioned in 40 Park Lane at para 9 that although a case may have compelling merits that tip the balance for or against an extension of time to appeal, a judge on a motion to extend time should not consider the merits of an appeal that only a panel of the court is properly authorized to decide:In general, however, motions to extend time to appeal to this court should not devolve into a full argument on the merits of the appeal or the litigation as a whole. It is not the place of a single judge on a motion to extend time, to consider the full merits of an appeal that only a panel of the court would have the authority to determine. It is sufficient to say in this case that even a cursory review of the notice of appeal and reasons for judgment make it clear that the proposed appeal is not so completely devoid of merit that the appellant should be denied his important right of appeal. [Emphasis added]
See also: 690 King Street at para 9, and Javid Estate v. Watson, 2023 ONCA 665 at para 14. ....
[40] Taking everything into account, I find that Mr. Gandhi has arguably shown a meritorious ground of appeal that is not so devoid of merit to justify removing his important right to appeal due to lateness. In making this finding, I am guided by the following recent emphasis by the Court of Appeal in Correct Building at para 11 that some potential merit to an appeal will favour the granting of an extension of time to appeal if there is no real prejudice to the other side: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. [Emphasis added] . Gonyea v. Whing
In Gonyea v. Whing (Div Court, 2023) the Divisional Court considers an extension of time to commence appeal in an RTA matter, here where the judge refers to granting the extension as 'leave' (in my experience an unusual terminology usage):[4] The test for an extension of time is well-settled. On a motion for an extension of time, the overarching question is whether the justice of the case requires that an extension be given. The court should take into account all relevant considerations, which include: (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; (c) any prejudice to the responding parties; and (d) the merits of the proposed appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.
....
[7] The landlord also submits that the appeal has no merit. Leave may be denied where the lack of merit of an appeal is so clear-cut that on its own, or in combination with other factors, the motion judge determines that leave should not be granted: Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, at para. 21. However, “[e]ven 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, at para. 20. . Rao v. Wawanesa Mutual Insurance Company
In Rao v. Wawanesa Mutual Insurance Company (Div Court, 2023) the Divisional Court considers (and allows) a motion to extend time to commence an appeal, here of a LAT SABS decision.
The below quote raises issues that I've written about before, there in the similar RTA context. The issue is what to do when an administrative regime allows for a 'review' (aka 'reconsideration', or 'recon') - but fails to allow an extension of time (so that the 'recon' can be conducted) to commence an appeal. Prudent (and necessarily well-funded) counsel facing such a situation would elect to advance both the recon and the appeal simultaneously (at least where 'questions of law' are concerned), a seemingly avoidable offence against the 'multiplicity of proceedings' prohibition set out in the Courts of Justice Act [s.138]. But this 'solution' is rarely financially available to most litigants, and recommending it disregards the undeniably more serious administrative offence that it poses to the 'access to justice' interest in such areas of law as residential tenancies and MVA-associated income support.
It is much worth noting that this problem is both overtly recognized (and sensibly and directly addressed) in social assistance law where, in the ODSP context [ODSPA, General Reg, s.70(2-3)], the law provides:70(2) If a party has made a request to the Tribunal for a reconsideration of its decision, no party may commence an appeal to the Divisional Court until,
(a) the Tribunal has held the reconsideration and delivered a decision;
(b) the Tribunal has refused to hold a reconsideration; or
(c) the request for the reconsideration has been withdrawn.
70(3) If subsection (2) applies, the notice of appeal with the Divisional Court shall be filed within 30 days after the occurrence referred to in subsection (2), rather than as provided in subsection (1). I have written on this issue in past [quoting from my Residential Tenancy (Ontario) Guide, Ch.15, s.4: 'Reviews and Appeals - When To Choose a Review, an Appeal - or Both?']:In Oladunjoye v. Jonker (Div Ct, 2021) the Divisional Court held that commencing a s.210 RTA appeal while an LTB review application was outstanding was premature. I have a problem with this case, because - unlike the situation with social assistance appeals [eg. ODSPA General Reg s.70] - the RTA has no appeal time-extending provision for when a review (reconsideration) is filed. I have already written on the prudence of filing both appeals and reviews to fully protect a party's rights, a situation which I lament but see no safe solution for. This case had the potential to resolve this problem with a clear statement of principle, but rather it was applied to hurt the tenant's case when they seem - in my mind - to be acting sensibly: ... In this case [in discussion at para.18 and 23 (below)] the court cites a similar practical (and highly sensible) resolution that parties sometimes reach to address this plainly unsensible situation. Parties simply 'wait out' the reconsideration, only commencing an appeal if and when it became necessary. Unfortunately this court viewed this practice as irrelevant as being "... not evidence and at most show(ing) an inconsistent practice.":[18] Counsel for both parties on this motion made submissions about the practice in the personal injury bar regarding when to serve a notice of appeal to the Divisional Court when a reconsideration is also sought at the LAT. There was reference to a practice of serving the notice of appeal within thirty days of the decision that is the subject of a reconsideration request, and, in parallel, seeking reconsideration from the LAT. There was also reference to waiting until after the reconsideration decision was released and then serving the notice of appeal challenging both decisions. As I said at the hearing, while I accept that counsel were trying to be helpful to the Court, these ad hoc submissions are of limited assistance. They are not evidence and at most show an inconsistent practice. In addition, in this case, an extension of time was needed from the LAT before there would be a reconsideration. This is not the more straightforward case of a final merits decision followed by a reconsideration decision.
....
[23] The moving party relies on the decision of this Court in Hordo v. CAA Insurance Company, 2023 ONSC 6774, also arising from a motion for an extension of time to appeal to this Court. It appears that Hordo proceeded on the assumption that the time to appeal began when the LAT released its reconsideration decision. That position was not challenged and there was no discussion about whether or not there was a right of appeal from the reconsideration decision. .... . Hordo v. CAA Insurance Company
In Hordo v. CAA Insurance Company (Div Court, 2023) the Divisional Court considered a motion to extend time to commence an appeal, which was late by 12 days:Analysis: Should the Motion to Extend Time be Allowed?
[6] The factors relevant to a motion to extend time are: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, and
e. whether the “justice of the case” requires the extension.
See: Rizzi v. Mavros 2007 ONCA 350 (CanLII), 85 O.R. (3d) 401; 2007 ONCA 350 at para. 16; Bratti v. Wabco Standard Trane Inc. (c.o.b. Trane Canada), 1994 CanLII 1261 (ONCA), [1994] O.J. No. 855; 828343 Ontario Inc. v. Demshe Forge Inc., 2022 ONCA 412 at para. 29. ....
Is there prejudice to CAA in granting an extension?
[15] On a motion to extend time, the question of prejudice has been applied to prejudice arising from or perpetuated by the delay itself. Broader questions of prejudice, beyond that occasioned simply by the delay fall to be considered under the fourth factor: 828343 Ontario Inc. at para 29. [SS: this is factor '(e)' in para 6, above]
[16] CAA has not demonstrated any significant prejudice arising from the 12-day delay in receiving the notice of appeal. The appeal is on questions of law on the record before the LAT. There is no demonstrable prejudice caused by the delay in CAA’s ability to respond to an appropriately framed appeal on a question of law.
[17] In support of its argument that this litigation will cause prejudice to the respondent, CAA filed decisions in prior litigation involving these applicants and other parties. In several of these decisions, the applicants have been found to have made serious unfounded allegations against litigants, non-parties, or counsel: see for example, Hordo v. Zweig, 2021 ONSC 2244 at paras. 3-4; Hordo v. Zweig 2022 ONSC 593 at paras. 31-39.
[18] Applying 828343 Ontario Inc. I conclude that this part of CAA’s submission should be considered under the “justice of the case” factor.
....
Does the Justice of the Case Require the Motion be Dismissed?
[28] Turning now to the broader question of the “justice of the case”, this involves the applicants’ history of making unfounded allegations during litigation and filing voluminous and irrelevant material that does not comply with the rules or directions from the court. The respondents are concerned with other litigation conduct, which seeks to involve non-parties, delays hearings on the merits and wastes time and resources with unfounded allegations and voluminous, unfocussed material.
[29] CAA has some basis for this concern, as discussed above. This type of conduct has been noted in other proceeding involving the applicants in the past, and more than once. However, denying litigants access to the courts for past conduct is serious step and one that must be considered carefully before doing so.
[30] Is this history sufficient to refuse an extension of an appeal which is not devoid of merit, where the delay is not lengthy and there is evidence of an intention to appeal? I cannot conclude that it does, for three reasons.
[31] First, the court has case management powers which are available to provide directions, set timetables, limit the volume of materials, and enforce its directions. Second, this appeal is at an early stage which means that case management is more likely to be successful. Finally, the applicants have stated their willingness to abide by orders and be amenable to case management.
[32] I cannot conclude that the applicants should not be able to continue with their appeal at this stage based on past findings in other litigation. However, having said that, it is important that terms be responsive to the potential issues which have been the subject of submissions on this motion. . Pantoja v. Belilla
In Pantoja v. Belilla (Ont CA, 2023) the Court of Appeal considered yet another motion to extend time to commence an appeal:[4] The overarching issue in extending time for an appeal is whether the “justice of the case” requires the extension, taking into consideration the following factors: (a) whether the appellants formed a timely intention to appeal; (b) the length of and explanation for the delay; (c) prejudice to the responding party; and (d) the merits of the appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. With respect to the last factor, while the absence of merit can justify the denial of an extension, when assessing the merits of the appeal, I must consider whether the appeal is so lacking in merit that the appellants should be denied their important right of appeal: Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 319, at para. 10; Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, at paras. 20, 21.
[5] The moving parties have not persuaded me that the justice of the case warrants granting the requested extension.
[6] First, there is no evidence that the moving parties formed an intention to appeal during the requisite time period to appeal ending August 8, 2023. At its highest, the evidence suggests that they were toying with the idea but had resigned themselves to the sale process ordered by Morgan J. and case managed by Associate Justice Frank. It was not until September 8, 2023, following the sales process before Associate Justice Frank, with which they were unhappy, that they decided to appeal Morgan J.’s order, as well as the order of Associate Justice Frank.
[7] Second, the delay is inordinate in the circumstances of this case where there is some urgency to the sales given Ms. Pantoja’s financial needs and circumstances. There is no adequate explanation for the delay other than the moving parties’ unhappiness with the sales decisions and process. That they changed their minds about appealing because they did not like the way the sales process was going is not an adequate explanation for the delay in this case.
[8] Importantly, the proposed appeal is without any discernible merit. Any appeal from an order under the Partition Act is to the Divisional Court: R.S.O. 1990, c. P.4, s. 7. Further, any appeal from an order made by an associate judge, depending on whether the order is interlocutory or final, lies to either the Superior Court of Justice or the Divisional Court: Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 17(a) and 19(c). As my colleague Pepall J.A. concluded in Sabatino, at para. 23, an appeal is meritless where the court has no jurisdiction to hear it.
[9] Moreover, there is no merit to any of the particular grounds that the moving parties asserted in challenge to Morgan J.’s order for a reference and partition and sale. . Opara v. Ciamarra
In Opara v. Ciamarra (Ont CA, 2023) the Court of Appeal considered the test for extending time to commence an appeal:[5] To succeed on his motion, the appellant must meet the following well-known criteria for extending time: whether the appellant formed a timely and continuing intention to appeal; the length of the delay and explanation for the delay; any prejudice to the respondent; the merits of the appeal; and the overarching issue of whether the justice of the case requires the extension: Deokaran v. Law Society of Ontario, 2023 ONCA 602, at para. 11; Jex v. Jiang, 2021 ONCA 160, at para. 5. The appellant has not satisfied me that the justice of the case warrants the requested extension.
[6] While the appellant may have had the requisite intention to appeal, he has not sufficiently explained all of the delay in perfecting his appeal. The evidence submitted on his motion speaks to a couple of brief periods between January and the end of March and in the summer but does not adequately explain the entirety of the delay that culminated in this court’s notice to dismiss the appeal for delay nor the delay in bringing on this motion as quickly as possible. At all times, he had counsel of record. He has not satisfactorily explained why counsel could not have prepared the materials within the required deadlines.
[7] With respect to the merits of the appeal, the appeal is clearly devoid of merit, which, on its own, is sufficient to deny the extension: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at paras. 16-17; Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, at para. 21. There is no further relief to be obtained even if his appeal were successful. The appellant does not complain in his notice of appeal that the motion judge failed to order all of the relief claimed in the statement of claim: the only relief requested in the appellant’s notice of appeal is an order that the respondent has failed to provide particulars of his contract for automobile insurance and costs, and he does not seek leave to appeal Dineen J.’s disposition of costs; alternatively, he requests a new hearing.
....
[9] Finally, with respect to the issue of prejudice, the respondent does not point to any discrete prejudice, such as the loss of a witness, but complains that he is harassed by the continuation of this matter. The overall prejudice to the respondent by the continuation of a meritless appeal that deprives him of the finality of the dismissal of the appellant’s claim also informs the justice of the case ground: Chandra v. Canadian Broadcasting Corp., 2016 ONCA 448, 349 O.A.C. 93, at para. 84; Jex, at para. 11. This factor further supports the dismissal of the extension request.
|
