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Appeals - Time - Extension to Commence (4). J.M. v. B.S.
In J.M. v. B.S. (Ont CA, 2024) the Ontario Court of Appeal dismissed a motion to extend time to commence an appeal, in part as the appellant tried to commence the appeal in the wrong court:[5] This motion turns on the merits of the appeal. This court’s jurisdiction is relevant to assessing the merits of the appeal. While a single judge of this court cannot quash an appeal because of lack of jurisdiction, a single judge can consider the court’s jurisdiction when deciding whether to grant an extension: Fontaine v. Canada (Attorney General), 2021 ONCA 931, at para. 8. An appeal brought in the wrong court “undercuts its merits and the interests of justice in granting the extension”: Collins v. Tiveron, 2024 ONCA 447, 2 R.F.L. (9th) 257, at para. 16. . Liu v. Chan
In Liu v. Chan (Ont CA, 2024) the Divisional Court dismissed a motion to extend time to commence an appeal:(1) The Test for Granting an Extension of Time
[14] A right of appeal is a creature of statute: Deokaran v. Law Society of Ontario, 2023 ONCA 602, at para. 2. Section 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, establishes a right of appeal to the Court of Appeal from a final order of a judge of the Superior Court of Justice. The time within which an appeal must be launched is prescribed by r. 61.04(1) of the Rules of Civil Procedure:61.04(1) An appeal to an appellate court shall be commenced by serving a notice of appeal (Form 61A or 61A.1) together with the certificate required by subrule 61.05 (1), within 30 days after the making of the order appealed from, unless a statute or these rules provide otherwise. [Emphasis added.] [15] This temporal limit is meant to vindicate the principle of finality in litigation. However, deadlines are sometimes missed. Depending on the circumstances, a missed deadline for filing a Notice of Appeal may be forgiven and remedied by an extension of time. How is this determined?
[16] In Bratti v. Wabco Standard Trane Inc. (1994), 1994 CanLII 1261 (ON CA), 25 C.B.R. (3d) 1 (Ont. C.A.), Laskin J.A. said, at p. 3: “While appellate courts have considered a number of different factors in determining whether to grant leave to extend the time for appealing, the governing principle is simply whether the ‘justice of the case’ requires that an extension be given.” In Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636 (“Enbridge Gas”), at para. 15, Gillese J.A. articulated the following test for granting an extension of time, a test that has been applied countless times:The test on a motion to extend time is well-settled. 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. See also 1250264 Ontario Inc. v. Pet Value Canada Inc., 2015 ONCA 5, at para. 6 (“Pet Value Canada Inc.”); Collins v. Tiveron, 2024 ONCA 447, 2 R.F.L. (9th) 257, at para. 13; and Ash v. Ontario (Chief Medical Officer), 2024 ONCA 398, at para. 15.
[17] Each of the factors in Enbridge Gas takes on varying degrees of significance, depending on the nature of the case. In this case, the most contentious issue I must resolve is the merits of the proposed appeal. Nonetheless, I consider each of these factors in turn.
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[28] I accept that I may take into account the litigation behaviour of an applicant seeking an extension of time to appeal: see, for example, Beard, Winter LLP v. Shekhdar, 2016 ONCA 493, at para. 19; and Overtveld v. Overtveld, 2021 ONCA 930, at paras. 19-22. However, Mr. Liu’s approach, as a self-represented litigant, does not rise to this level. Although Mr. Liu’s repetitive style of pleading may be frustrating to his opponent, Dr. Chan is represented by experienced litigation counsel who are capable of handling this approach. In appropriate cases, this is a matter better dealt with through costs consequences.
(d) The Merits of the Proposed Appeal
[29] The merit of a proposed appeal is the most important consideration in deciding whether an extension of time should be granted: see Deokaran, at para. 16; Robson v. Law Society of Ontario, 2023 ONCA 709, at para. 5.; and Paulsson v. University of Illinois, 2010 ONCA 21, at para. 2.
[30] The “merit” of an appeal has a precise meaning in this context. In Beazley, Simmons J.A. said, at para. 73:The issue of the merits of the appeal must be assessed not with a view to determining whether the appeal will succeed, but only with a view to determining whether the appeal has so little merit that the court could reasonably deny the important right of appeal: Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 10; Duca Community Credit Union Ltd. v. Giovanni et al. (2001), 2001 CanLII 24017 (ON CA), 142 O.A.C. 146 (C.A.), at paras. 14-15. [31] When an appeal would appear to have little merit, absent prejudice to the opposing party, and in light of the other factors that must be balanced, an extension of time may still be warranted: see Auciello v. Mahadeo, 2016 ONCA 414, at paras. 14, 16; and Correct Building Corporation v. Lehman, 2022 ONCA 723, at para. 11.
[32] What about appeals that are completely devoid of merit? In Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208 (“Sabatino”), Pepall J.A. addressed this issue. As she said at para. 21:[T]here are occasions when the lack of merit in an appeal is so clear-cut that, on its own or in combination with a consideration of the other factors, a motion judge determines that leave should not be granted: see for example Reid v. College of Chiropractors of Ontario, 2016 ONCA 779, at para. 15; Wardlaw v. Wardlaw, 2020 ONCA 286, at para. 4; Sutherland Lofts Inc. v. Peck, 2017 ONCA 803, at para. 12. Courts must be mindful of the cost of litigation and unnecessary expenditures of time but all the while preserving the need to ensure that the dictates of the justice of the case are met. See also Continental Imperial Exploration Ltd v. Ontario (Environment, Conservation and Parks), 2024 ONCA 328, at para. 4; Pet Value Canada Inc., at para. 7; Pantoja v. Belilla, 2023 ONCA 757, at para. 4; and Opara v. Ciamarra, 2023 ONCA 731, at para. 7.
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(e) The “Justice of the Case”
[36] Returning to the overarching question on an application for an extension of time – “the justice of the case” – I acknowledge that Mr. Liu did not miss the 30-day deadline by much. He made a common mistake about when the time period starts to run. Mr. Liu attempted to correct this situation quite promptly. However, these factors are overwhelmed by the complete lack of merit in his proposed appeal. In the circumstances, “the justice of the case” requires that the completely unfounded allegations against Dr. Chan’s competence and integrity come to an end: Sabatino, at para. 19; and Opara, at para. 9. . Beazley v. Johnston
In Beazley v. Johnston (Ont CA, 2024) the Ontario Court of Appeal dismisses a motion to extend time to commence an appeal, here also considering the 'merits' element of that test:A. The test on a motion for an extension of time to file a notice of appeal
[58] The test on a motion of this kind is well-established. The overarching principle is whether the justice of the case requires that an extension be given. Each case depends on its own circumstances, and the court must take into account all relevant considerations, which generally include the following:. whether the moving party formed a bona fide intention to appeal within the relevant time period;
. the length of, and any explanation for, the delay;
. any prejudice to the responding’s parties caused by the delay; and
. the merits of the proposed appeal. See e.g., Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.
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(4) The merits of the proposed appeal
[73] The issue of the merits of the appeal must be assessed not with a view to determining whether the appeal will succeed, but only with a view to determining whether the appeal has so little merit that the court could reasonably deny the important right of appeal: Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 10; Duca Community Credit Union Ltd. v. Giovanni et al. (2001), 2001 CanLII 24017 (ON CA), 142 O.A.C. 146 (C.A.), at paras. 14-15. . Ontario (Attorney General) v. $38,570 in Canadian Currency (In Rem)
In Ontario (Attorney General) v. $38,570 in Canadian Currency (In Rem) (Ont CA, 2024) the Ontario Court of Appeal considered the test for extending time to commence an appeal under the Civil Remedies Act". Here, the court considers the 'merits' element of this test:[5] Importantly, there is no apparent merit to Mr. Mohamed’s proposed appeal. Lack of merit alone can be a sufficient basis on which to deny an extension of time: Enbridge, at para. 16; Nguyen v. Economical Mutual Insurance Co., 2015 ONCA 828, at para. 13; Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116, at para. 7; and Philbert v. Graham, 2022 ONCA 122, at para. 16. I come to this conclusion having recognized that the bar is relatively low, and my role on this motion is not to determine the merits of the appeal but to assess the strength of the grounds of appeal for the purpose of determining whether the appeal has so little merit that Mr. Mohamed should, in all the circumstances of this case, be deprived of 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; and Nguyen, at para. 13. As I shall explain, this is such a case. . Ieraci v Parsons
In Ieraci v Parsons (Div Court, 2024) the Divisional Court dismissed a landlord's motion to extend time to commence an RTA s.210 appeal of an LTB "finding that ... [the LL] illegally evicted Ms. Parsons". The history of the dispute was that of a flooded basement apartment that the tenant left and the LL treated as abandoned, a legal conclusion that the LTB disagreed with.
Here the court considered (and denies) the motion to extend time to commence an appeal - unusually under the case conference RCP 50.13(6) authority - and primarily on the basis that the LL's appeal was not grounded on a question of law [which is required under RTA s.210]:[27] This is a case in which it is fair and appropriate to exercise the court’s authority under Rule 50.13 (6)(d) [SS: 'Case Conference - Powers'] of the Rules of Civil Procedure, RRO 1990, Reg 194, to decide the extension issue summarily without imposing on the parties the cost and delay of formal motion practice. The directions convening the case conference gave notice of the issues and topics to be covered. Changing the form of Mr. Ieraci’s written submissions to an affidavit and factum will not change the substance. I am prepared to treat the submissions as if they were sworn.
[28] Taking Mr. Ieraci’s submissions at their highest, and without cross-examination of Mr. Ieraci, he is unable to satisfy the requirements to obtain an extension of time to appeal the board’s decision.
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(ii) The Appeal does not raise a Question of Law
[33] As was the case with Mr. Ieraci’s request for reconsideration, his proposed appeal has no merit. Under s. 210 of the Residential Tenancies Act, 2006, this court has jurisdiction to hear only appeals on questions of law. While he has tried to pose his grounds of appeal in terms of legal issues, all his arguments contest the board’s finding of fact or mixed fact and law that Ms. Parsons did not abandon the tenancy and therefore her eviction was unlawful.
[34] The board heard Mr. Ieraci’s evidence and found that it was his renovation and not the flood that made the unit uninhabitable. He turned a repair into a three-year gutting and renovation.
[35] Even if the tenant was in arrears of rent at the time of the flood, the landlord did not act on it. Mr. Ieraci says he served a notice to terminate for non-payment of rent but he did not file it with the board to seek an order terminating the lease. Once again, he says that was due to the tenant’s abandonment. But the landlord was not free to decide that the tenant’s arrears allowed him to terminate the lease or refuse her alternative accommodation without an order of the board.
[36] Mr. Ieraci submits that Ms. Parsons abandoned the premises before he gutted them. He refers to text messages and her involvement of the police to help ensure that she had access to all of her goods to put into storage. This evidence was before the board.
[37] Mr. Ieraci submits that the scheduling of the hearing left him unable to call a witness – a Mr. Nunes.
[38] Mr. Nunes was the person hired by Mr. Ieraci to help Ms. Parsons move her goods into storage. Mr. Ieraci says that Mr. Nunes came to an earlier hearing but the hearing adjourned that day. Mr. Nunes then moved to Vancouver and Mr. Ieraci lost track of him. Mr. Ieraci has found him Mr. Nunes and proposes that Mr. Nunes give evidence to support his submission that Ms. Parsons abandoned the unit. For example, he says, Mr. Nunes helped Ms. Parsons move her bed into storage. She could not have intended to live in the unit while it was being repaired without a bed.
[39] The hearing adjourned twice at Mr. Ieraci’s request. Both adjournments were peremptory to him. There is no indication that his legal representative sought an adjournment of the second peremptory hearing to try to locate Mr. Nunes.
[40] All hearings of the board are held virtually by videoconference. The location of a witness does not affect his ability to testify as long as he has access to the internet.
[41] There is no realistic likelihood that Mr. Ieraci will obtain leave to deliver Mr. Nunes’ evidence as fresh evidence on the appeal. Fresh evidence cannot be submitted if it was available to a party at the time of the original hearing by the exercise of reasonable diligence. Neither leave to file fresh evidence nor a new hearing is available because Mr. Ieraci did not protect a witness’s evidence while facing a peremptory hearing date.
[42] In any event, the evidence proposed for Mr. Nunes is just confirmatory of Mr. Ieraci’s side of the story. The board understood Mr. Ieraci’s professed belief that Ms. Parsons abandoned the premises. It understood the timeline as the quoted paragraphs above demonstrate.
[43] Mr. Ieraci raises issues about the definition of “uninhabitable”; the fact that Ms. Parsons gained access to the premises after July 5, 2021 and therefore was not locked out; that Ms. Parsons brought the police to obtain access to her goods; and that he offered Ms. Parsons reasonable alternative accommodation.
[44] Mr. Ieraci believes that the board was wrong in finding that the unit became uninhabitable only after he gutted it and in failing to find that Ms. Parsons abandoned before that date.
[45] But there is no appeal available to this court on the issue of whether Ms. Parsons abandoned the premises. The Legislature of Ontario has told the court in s. 210 of the statute that the board has the last word on questions of fact and mixed fact and law.
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Outcome
[49] With Mr. Ieraci unable to show that he made any real effort to appeal in a timely way, with the appeal lacking merit, and an extension of time risking prejudice to Ms. Parsons, the justice of the case leads me to deny the extension sought.
[50] As is usually the case, in my view, the most important factor is the assessment of the merits of the proposed appeal. It is perfectly clear from Mr. Ieraci’s notice of appeal, his written submissions, and his oral submissions that he is dissatisfied with the board’s findings of fact and he wants a chance to re-do the hearing on better evidence. An appeal restricted to issues of law is simply not available to do that.
[51] It follows that Mr. Ieraci’s request for an extension of time to bring this appeal must be dismissed. The appeal is therefore dismissed.
[52] If she seeks costs, Ms. Parsons may deliver up to two pages of submissions and a Costs Outline by April 12, 2024. Mr. Ieraci may deliver up to two pages of submission in response by April 19, 2024. Submissions are to be copied to my Judicial Assistant by email to therese.navrotski@ontairo.ca.
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