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Appeals - Time Extension to Perfect. Tan v. Yu
In Tan v. Yu (Div Court, 2024) the Divisional Court, in unusual circumstances which justified re-opening (setting aside) a prior motion to extend time to perfect an appeal, again dismisses a motion to extend time to perfect an appeal:[18] While the Respondent is technically correct – an unsuccessful party cannot bring the same motion again and ask for a “do-over” - there are unique circumstances that merit reconsideration of the Appellant’s motion. In particular, there seems to have been some miscommunication between the Registrar’s office and the Appellant because the Registrar’s office was never informed that the Appellant was now self-represented. Thus, she was not aware of the Registrar’s Notices of May 14 and May 24, 2024 when the motion was argued before Di Luca J. on July 18, 2024.
[19] Accordingly, I will treat the Appellant’s motion as a motion under Rule 37.14(1)(c) to set aside the order of the Registrar and seek an extension of time to perfect her appeal.
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[23] This Court can extend time to appeal under Rule 3.02 of the Rules of Civil Procedure when it considers it just to do so. The onus is on the moving party to establish the grounds for an extension: Teitler v. Dale, 2021 ONCA 577, at para. 7. The governing principle is whether the justice of the case requires that an extension be given: Canadian Western Trust Co. v. 1324789 Ontario Inc., 2021 ONCA 23, at para. 24.
[24] On a motion for leave to extend the time to bring a motion for leave to appeal, the court should consider:(a) Whether the moving party formed an intention to appeal within the relevant period;
(b) The length of the delay and the explanation for it;
(c) The prejudice to the responding party; and
(d) The merits of the appeal. See: Van de Kerckhove v. Wagner, 2022 ONSC 5780, at paras 10-11; Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 554, at para 2; MacMillan v. Klug, 2024 ONSC 1125, at para. 7.
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[26] The presence or absence of merits of an appeal may be dispositive on a motion to extend time: MacMillan, at para. 12. . Canadian Pacific Railway Company v. Teamsters Canada Rail Conference
In Canadian Pacific Railway Company v. Teamsters Canada Rail Conference (Div Court, 2023) the Divisional Court considered extending time to perfect (not commence) a case-managed (and August 2021-served) judicial review:V. The Reasons for Dismissal
[19] The motion judge granted Teamster Canada’s motion based on CP’s delay, without addressing abuse of process. In making this finding, she considered and discussed in her reasons the length of delay, the reasonableness of CP’s explanation for delay and the prejudice suffered by Teamsters Canada due to the delay, citing Canadian Chiropractic Association v. McLellan, 2011 ONSC 6014 (Div. Ct.), at para. 15.
[20] Regarding the length of delay, the motion judge noted that the case management timelines that applied during the period of this litigation and wrote that directions from case management are orders to be respected and followed. The motion judge made a finding that CP did not perfect its application within the court directed timelines, nor did it request an extension of time to do so. CP also did not take steps to perfect the application. The motion judge cited Ransom, at para. 10, where the court found that a delay of 12 months or more to perfect an application for judicial review could warrant dismissal.
[21] The motion judge rejected CP’s argument that there was no delay because it was entitled to amend its notice of application if no affidavits had yet been served, and therefore, the deadline to perfect had not passed. The motion judge found this would permit parties to extend judicial review applications indefinitely and was contrary to the Rules. She found the delay in this case was, at minimum, 11 months and was an excessive period of delay.
[22] CP’s explanation for the delay was that it was engaged in collective bargaining and an arbitration, and it was managing supply chain difficulties during this time. The motion judge found that these were vague attempts to justify taking no action in the proceeding. The motion judge found that CP’s explanations did not justify its failure to respect case management directions, in a case that it initiated, even by taking steps to vary the timetable.
[23] Regarding prejudice, Teamsters Canada submitted that CP’s failure to move the matter along meant other grievances regarding vacation entitlement remained outstanding. The motion judge found that CP’s failure to diligently pursue the application resulted in “a prolonged lack of certainty regarding the underlying issue of annual vacations.” She also found that the amended notice of application differed fundamentally from the original notice, an independent source of prejudice to Teamsters Canada.
[24] The motion judge found it was plain and obvious that the application should be dismissed for delay.
VI. Analysis
[25] CP submits that the motion judge made a palpable and overriding error by concluding that an 11-month delay could warrant dismissal for delay. CP submits that Ransom does not envision dismissal of a matter for a delay that is less than 12 months from filing to perfection. CP relies on the statement in Ransom, at para. 10, as follows:The jurisprudence of this Court has held that a delay of six months or more in commencing an application and/or twelve months or more in perfecting it could warrant dismissing the application. See Gigliotti v. Conseil d'Administration du Collèges des Grands Lacs, 2005 CanLII 23326 (ON SCDC), [2005] O.J. No. 2762 (Div. Ct.) at paras. 29-30 and Bettes v. Boeing Canada/DeHavilland, [2000] O.J. No. 5413 (Div. Ct.). [26] The decisions in Gigliotti and Bettes in fact stand for the proposition that a delay of 12-months “alone” in perfecting an application in the Divisional Court could justify dismissal for delay. Consistent with that proposition, more than simply the length of delay is relevant on a motion to dismiss for delay. This discretionary exercise requires the court to consider as well the reason for the delay and the impact of the delay on the parties and others: Canadian Chiropractic Association, at para. 15.
[27] The motion judge considered Ransom, and the three relevant factors, discussing each in turn in the reasons for decision. She concluded that not only was there excessive delay of 11 months, with the Applicant providing no compelling reason for apparently ignoring case management directions, but there was prejudice flowing from the new grounds in the amended application and the impact of the delay on other outstanding grievances.
[28] The motion judge, at para. 24, found that the explanation for the delay was insufficient, in these terms:CP's explanation for the delay is that it was engaged in collective bargaining that resulted in an impasse and arbitration, as well as "significant operational challenges resulting from supply chain disruptions caused by the COVID-19 pandemic." In my view, this vague attempt to justify taking no action in a legal proceeding that CP itself initiated is not a reasonable explanation for failing to respect the case management direction, which CP did not seek to vary, and failing to take any steps to pursue its application for almost one year. In Unifor v. Scepter, this court found that, in the case of an eight-month delay in commencing an application for judicial review, the applicant should have moved forward within the time limit "or provided a robust explanation for what is a very lengthy delay." Unifor v. Scepter, [2022 ONSC 5683] at para. 24. CP's explanation is far from robust. [29] The motion judge made specific findings that Teamsters Canada had been prejudiced by the delay and the prolonged lack of certainty around vacation entitlement. This is a reasonable conclusion given the nature of the arbitrator’s finding that the decision on vacation entitlement applied to other employees. A second finding of prejudice arose from the amended Notice of Application. As the motion judge found, this latter form of prejudice flowed from a change to the relief sought, the grounds for relief and the evidence required in support. CP did not explain why it had not provided the amended grounds sooner, which the motion judge found was a “substantively different application.”
[30] CP submits that the motion judge erred in law by failing to make any findings on prejudice. CP also submits that its amended application narrowed the issues to be reviewed.
[31] The first submission overlooks the paragraphs in the motion judge’s reasons which clearly discuss her findings on prejudice. The second submission mischaracterizes the plain wording of the amended Notice of Application as compared to the original Notice of Application. These substantive differences included the basis for relief, the nature of the record and evidence in support of the application and the nature of the relief sought.
[32] The motion judge’s findings as to prejudice were amply supported by the record and the pleadings. I find that the motion judge applied the facts before her to the applicable principles in law. Her exercise of discretion was reasonable and clear from the reasons. Note that the JR was initially served on 23 August 2021 [para 12] (the triggering events occurring shortly before) - a year after the JRPA was amended to create the JRPA s.5 30-day limitation period [on 08 July 2020], and it was case-managed [para 20]. No mention was made in the reasons for decision of JRPA s.5 at all, and it reads like an older 'laches' analysis.
. Bell v. Amini
In Bell v. Amini (Ont CA, 2023) the Court of Appeal cites a general test for extending time (here to perfect):[9] 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 Monteith v. Monteith, 2010 ONCA 78, at para. 11. . Correct Building Corporation v. Lehman
In Correct Building Corporation v. Lehman (Ont CA, 2022) the Court of Appeal considered the test for extending time to perfect an appeal, here focussing extensively on the merits element of the test:[9] The test for granting an extension of time to appeal, and by analogy, to perfect an appeal was recently stated by Simmons J.A., sitting as a motion judge, 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. [10] In this case the appellant appealed on time. It needs only a brief extension to perfect, in large part because of the volume of material to be assembled. There is no discernable prejudice to the respondents. In addition, an extension has been granted against the City of Barrie, so that the material is going to be prepared in any event, and the matter will be dealt with in this court so that court time will be spent on this matter in any event. The question that remained for the motion judge was whether there was some potential merit to the appeal and whether the justice of the case required that the extension be granted.
[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 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. ....
[15] With respect to the motion judge, his decision to deny an extension of time is subject to review by this panel. The motion judge made two reviewable errors: he misapprehended and minimized the potential strength of the merit of the appeal, and he erred in law by failing to apply the principle from 40 Park Lane 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.
[16] It is therefore for this panel to apply the factors in the test for an extension of time. As the motion judge noted, the delay was short and the moving party’s explanation for the delay was reasonable. Although the summary judgment judge dismissed the claim against the individual respondents, his reasons on the issue are relatively summary and it cannot be said that no reviewable errors were made. Moreover, the Barrie appeal is proceeding in any event. The voluminous record is already being produced. There is no prejudice to the other side or to the court to hear both matters together. Indeed, it is more efficient and effective for the court to consider the merits of both matters together, on a full record. Taking all the factors together, the justice of the case requires that an extension be granted to appeal against the individual respondents in addition to the City of Barrie appeal. The court considered the appeal motion judge's treatment of the case of Pet Valu, and found it to be unusual (ie. exceptional wrt the test) on the merits element of the test for extending time to perfect the appeal:[8] The motion judge saw “no likelihood of successfully challenging this finding on appeal”. He likened this appeal to the one in 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, where the motion judge denied the extension because she found no “scintilla suggesting that the appeal has merit”: at para. 7. On that basis, he denied the extension of time to appeal the dismissal against the individual respondents.
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[12] Pet Valu was an unusual case, where the absence of any merit was used by the motion judge to deny the extension. There, the class action judge decided that because on the evidence there was no breach of the franchise agreement by Pet Valu, breach of contract could not be a common issue in the class proceeding. The notice of appeal was generically framed, and the affidavit filed in support of the motion to extend the time to file the notice of appeal and to perfect the appeal did not address the merits. As a result, the motion judge found that there was nothing in the material to undermine the class action judge’s finding, and therefore no basis to find any potential merit in the appeal: Pet Valu, at paras. 7-8. The motion judge concluded therefore that the justice of the case did not require the grant of an extension.
[13] The record in this case is quite different. There was significant evidence of failure by staff to disclose relevant reports to the former mayor of Barrie or to the appellant and evidence that staff had different views on whether development should proceed on the site. The summary judgment judge made a finding that that non-disclosure could not amount to bad faith. . 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.
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[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.
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[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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