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Appeals - Time Extension to Perfect

. Caledon (Town) v. Darzi Holdings Ltd.

In Caledon (Town) v. Darzi Holdings Ltd. (Ont CA, 2022) the Court of Appeal considered both appeal motions to set aside a Registrar's dismissal for delay and for an extension of time for perfection under the same time extension test:
[28] The principles governing a request to set aside a Registrar’s dismissal order and for an extension of the time to perfect an appeal are well-known. The overarching principle is whether the justice of the case requires granting or refusing the relief sought. As part of the analysis, the court typically considers several factors: (i) whether the appellant formed an intention to perfect the appeal within the time prescribed by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; (ii) whether the appellant moved with due dispatch to set aside the dismissal order (a matter not in dispute on this motion); (iii) the length of the delay; (iv) the explanation for the delay; (v) the merits of the proposed appeal; and (vi) any prejudice to the respondent.
. Oliveira v. Oliveira

In Oliveira v. Oliveira (Ont CA, 2022) the Court of Appeal considered factors to used to determine whether to grant an extension of time to perfect an appeal:
[14] In a motion to extend time to appeal, the overriding issue is whether it is in the interests of justice in the particular circumstances to extend time: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 3.02(1); 2363523 Ontario Inc. v. Nowack, 2018 ONCA 286, at para. 4. Among the relevant factors, the court may consider whether the appeal has so little merit that the court could reasonably deny the 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. Other factors include whether the appellant intended to appeal during the appeal period; the length of and explanation for the delay; and prejudice to the opposing party: Denomme v. McArthur, 2013 ONCA 694, 36 R.F.L. (7th) 273, at para. 7. Consideration must be given to all factors relevant to the circumstances of the case: Leighton v. Best, 2014 ONCA 667, 20 C.B.R. (6th) 326, at para. 14.
. Sabatino v. Posta Ital Bar Inc.

In Sabatino v. Posta Ital Bar Inc. (Ont CA, 2022) the Court of Appeal considered a motion to extend time to perfect an appeal:
[1] The applicant, Moses Sabatino, moves for an extension of time to perfect his appeal. A factor that may be considered on a motion to extend time is whether this court has jurisdiction: Jadhav v. Jadhav, 2020 ONCA 19.

....

[11] In considering whether to grant an extension of time, the court has generally considered the following factors: (i) whether the appellant formed an intention to appeal within the relevant period; (ii) the length of, and explanation for, the delay; (iii) prejudice to the respondent; and (iv) the merits of the appeal. The overarching principle is that an extension should be granted if the justice of the case so requires.

....

[20] When assessing the merits of an appeal, it is to determine 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. 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 should not be deprived of the right to appeal where there is no real prejudice to the other side: Denomme v. McArthur, 2013 ONCA 694, 36 R.F.L. (7th) 273, at para. 10; Derakhshan v. Narula, 2018 ONCA 658, 142 O.R. (3d) 535, at para. 22.

[21] That said, there 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.

[22] But for the jurisdiction issue, I do not view the merits of this appeal to be so weak that the requested extension of time is unjustified. While the respondents assert strong arguments in response to those of the applicant, I would not be prepared to conclude that the justice of the case precludes an extension of time to permit the applicant to have his appeal adjudicated.

[23] However, here I must conclude that the appeal is meritless because, as the parties concede, this court has no jurisdiction to hear it: see Henderson v. Henderson, 2014 ONCA 571, 325 O.A.C. 138, at para. 8; Aljawhiri v. Pharmacy Examining Board of Canada, 2019 ONCA 798, at para. 7; and Jadhav v. Jadhav. But for that difficulty, the other factors would favour the grant of an extension of time.



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