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Construction - Appeals. Soo Mill & Lumber Company Ltd. v. Pozzebon
In Soo Mill & Lumber Company Ltd. v. Pozzebon (Div Court, 2024) the Divisional Court quashed a Construction Act appeal for being interlocutory and thus in the wrong court.
Here the court outlines the Construction Act appeal route, and recent amendments and transitional provisions:Construction Lien Act appeals
[14] Before July 1, 2018, the Construction Lien Act prohibited appeals from interlocutory orders. On that date, it was amended to provide for such appeals to the Divisional Court with leave, and the title of the Act was changed to “Construction Act”. However, pursuant to the transition provisions of the new Act, interlocutory appeals continue to be prohibited if the contract for the improvement was entered into before it came into force. In the present case, although the parties do not agree on the contract date, they do agree that no appeal lies if the order of Gordon J. was interlocutory. Where they differ is on the question of whether the order was final or interlocutory. . Trillium Masonry Group Inc. v. Marydel Homes (Beaverton) Inc.
In Trillium Masonry Group Inc. v. Marydel Homes (Beaverton) Inc. (Div Court, 2024) the Divisional Court allowed a construction lien appeal, here where the lower court order vacated a lien.
Here the court considers the applicable appeal route:[23] The Divisional Court has jurisdiction to hear this appeal. An appeal from a judgment under the Construction Act lies to the Divisional Court, but leave is required to appeal an interlocutory order: Construction Act, ss. 71(1), 71(3). An order that “reduces a portion of the claim [for lien] from being secured to unsecured determines a substantive issue and deprives the lien claimant of certain legal rights. Such an order is a final order and can be appealed” to the Divisional Court under s. 71(1) without leave: see H.I.R.A Ltd. v. Middlesex Standard Condominium Corp. No. 823, 2018 ONSC 3661, 61 C.B.R (6th) 59 (Div. Ct), at para. 22. . MGW-Homes Design Inc. v. Pasqualino [appeal routes]
In MGW-Homes Design Inc. v. Pasqualino (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal against "an order vacating a writ of enforcement issued in connection with an adjudicator’s determination under the Construction Act".
Here, an an initial appeal route issue, the court considers whether the appealed matter was an 'order' or a 'judgment':[1] .... As a preliminary issue, MGW raised the issue of whether this court has jurisdiction to hear the appeal. The answer to that question turns on whether, under s. 71(1) of the Construction Act, the order appealed from constitutes a “judgment”. If it does, the appeal lies to the Divisional Court.
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[3] In short, a review of the case law indicates that this court has consistently interpreted the term “judgment” in s. 71(1) broadly: see Villa Verde L.M. Masonry Ltd. v. Pier One Masonry Inc. (2001), 2001 CanLII 7060 (ON CA), 54 O.R. (3d) 76 (C.A.); TRS Components Ltd. v. Devlan Construction Ltd., 2015 ONCA 294, 125 O.R. (3d) 161. Applying that approach here, I would find that the order under appeal falls within the meaning of “judgment” in s. 71(1) of the Construction Act.
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[14] ... as a preliminary issue, MGW raised a jurisdictional question of whether the appeal was properly before this court or whether it should be heard by the Divisional Court. Given that adjudication is new to the Construction Act, MGW noted that the jurisdictional issue is “novel” and, as a result, it perfected its appeal in both the Divisional Court pursuant to s. 71(1) of the Construction Act and this court pursuant to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”). The appeal before the Divisional Court was scheduled to be heard on October 16, 2023, shortly after the hearing in this court.
[15] Section 71 of the Construction Act contains the statute’s only appeal provision: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.
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(3) No appeal lies from an interlocutory order made by the court, except with leave of the Divisional Court. [16] The issue is whether the order appealed from falls within the definition of “judgment” in this provision.
[17] MGW argues that the term “judgment” should be interpreted broadly and, as a result, the appeal should be heard by the Divisional Court. In its factum and in oral submissions, MGW relied on Villa Verde and TRS for the following propositions:1. A final order is the same as “judgment” under s. 71(1) of the Construction Act;
2. This court has interpreted “judgment” broadly so that it does not just apply to construction liens, but also applies to trust claims; and
3. This court has interpreted that a judgment on a counterclaim which was neither a lien nor a trust, but still arose from a proceeding brought under the Construction Act, was still a “judgment” for purposes of s. 71(1). [18] Taking these propositions into account, MGW argues that this court should interpret “judgment” broadly here to include the final order at issue in this case, which is an order from a proceeding under the Construction Act, namely an adjudication.
[19] Mr. Pasqualino disagrees, arguing that the adjudication process and the court or arbitration process are separate and parallel legal proceedings allowed under the Construction Act. Mr. Pasqualino submits that the motion judge’s order (which is separate from the adjudication decision) should be considered a “final order” because it extinguishes a “substantive right” and should therefore be heard by this court.
[20] In oral submissions, counsel for Mr. Pasqualino argued that s. 71(1) of the Construction Act is an exception to the normal appeal route under s. 6(1)(b) of the CJA and should therefore be interpreted narrowly. Counsel for Mr. Pasqualino argued that Villa Verde and TRS are distinguishable because those cases related to liens (and proceedings related to liens), which have their own procedure under Part VIII of the Construction Act. In contrast, this case was an adjudication under Part II.1, which has a separate procedure.
[21] In reply, MGW pointed out that Villa Verde was about a trust claim and would not have followed the procedure under Part VIII.
ANALYSIS
[22] The broad purpose of the Construction Act has been described as providing “an efficient means of dealing with trade claimants that would otherwise be left behind without security if unpaid on a building project where payments typically flow from above and follow performance”: Teepee Excavation & Grading Ltd. v. Niran Construction Ltd. (2000), 49 O.R. (3d) 612 (C.A.), at para. 24. Lower court case law also reflects the general sense that efficiency – both financial and temporal – animates the Construction Act.
[23] The motion judge recognized that the new adjudication process in Part II.1 helps facilitate the goal of efficiency:[Part II.1] of the [Construction Act] creates an interim dispute resolution mechanism intended to be a quick and efficient way to resolve disputes in construction through an adjudication process. That adjudication process is intended to provide the parties with access to a summary process to quickly resolve disputes in construction cases without the need to go through, or wait for the outcome of, a court process or arbitration. [24] I would reject Mr. Pasqualino’s submission that s. 71(1) of the Construction Act provides an exception to the normal appeal route under the CJA and should therefore be interpreted narrowly. In my view, such an interpretation would undermine the purpose of efficiency and would be contrary to case law interpreting the appeal provision.
[25] First, this court in both Bird Construction Co. v. C.S. Yachts Ltd. (1990), 38 O.A.C. 147 (C.A.), and Villa Verde, held that the appeal provision, “being a provision under a special act dealing with construction liens, takes precedence over the appeal provisions in the Courts of Justice Act, which is a general act dealing with appeals from the final order of a superior court judge”: Villa Verde, at para. 9; Bird Construction, at para. 9. It is therefore not merely a narrow exception to the appeal route in the CJA.
[26] Second, this court in both Villa Verde and TRS has interpreted s. 71 of the Construction Lien Act, R.S.O. 1990, c. C.43 (which is substantially the same as s. 71 of the Construction Act), broadly. Specifically, both decisions have given a broad interpretation to the term “judgment” in s. 71. As is evident from the discussion of these cases below, neither case limits this broad interpretation to the specific procedure for lien claims, as argued by Mr. Pasqualino.
[27] In Villa Verde, Rosenberg J.A. determined that an appeal of a construction trust under Part II of the Construction Lien Act lay to the Divisional Court under s. 71(1). He specifically held that the word “judgment” should not be interpreted restrictively to only include lien claims, but rather should be interpreted to also include judgments arising out of trust claims: see paras. 7-9. This is significant not only because of the broad interpretation of s. 71(1) but also because, like in the current Construction Act, trust claims in the Construction Lien Act did not fall under the same part as lien claims (in other words, this case was not dealing with lien claims and their particular procedures under Part VIII of the Construction Act).
[28] In coming to this finding, Villa Verde relied on this court’s decisions in Bird Construction (interpreting the Construction Lien Act, 1983, S.O. 1983, c. 6) and Durall Construction Ltd. v. W.A. McDougall Ltd. (1979), 1979 CanLII 1700 (ON CA), 25 O.R. (2d) 371 (interpreting the Mechanics’ Lien Act, R.S.O. 1970, c. 267).
[29] In Bird Construction, this court held, at para. 6, that an order dismissing an action after the plaintiff’s claim for a lien had expired constituted a “judgment” for the purposes of the appeal provision, “notwithstanding the fact that it is referred to as an order, and notwithstanding the fact that it was made without a trial having taken place.”
[30] In Durall, this court held, at p. 373, that the word “judgment” in the appeal provision could apply “to any decision by the appropriate Judge or Master by which the rights of a party to the mechanics’ lien proceedings are finally disposed of, and that the matter is not to be tested by the name which is given to that disposition nor by the terminology within it.”
[31] The broad approach to the interpretation of s. 71 of the Construction Lien Act (and the identical provision in the Mechanics’ Lien Act) demonstrated in the above cases was applied more recently in TRS. In that case, the appellant appealed a decision that was grounded in contract and negligence, but which had initially been brought as a counterclaim to a construction lien action. The construction lien action had been dismissed, however the trial had proceeded on the construction lien procedural track even though the only claim remaining was the contract and negligence counterclaim. The appellant argued that Villa Verde stood for the proposition that it was the substantive claim in the action that determined the route of appeal, not the fact that the proceedings were commenced under the Construction Lien Act. This court rejected that argument, at paras. 17-18, and in doing so provided an unrestrictive definition of “judgment”:Because the judgment [in Villa Verde] involved substantive claims under the Act, it resulted from a proceeding under the Act. While the court observed, at para. 1, that “an appeal involving only proceedings under the [Act] is to be brought in the Divisional Court”, the case did not address the full scope of “proceedings under the Act”. In particular, Villa Verde did not address whether a judgment on a counterclaim in a lien action is a judgment in “a proceeding under the Act”.
In our view, “judgment ... under this Act” in s. 71 includes a judgment granted in an action commenced and continued under Part VIII of the Act, including any counterclaim, crossclaim or third party claim, unless the action or any part of the action is removed from the construction lien proceeding, and directed to proceed under the Rules. [32] I would not accept the respondent’s argument that this unrestrictive definition limits the term “judgment” to lien proceedings under Part VIII of the Construction Act. This would be contrary to Villa Verde which, as discussed above, dealt with a trust claim, not a lien claim, and is not supported even on the plain reading of the definition in TRS.
[33] The court in TRS expressly followed its earlier decision in Teepee, where Carthy J.A. held that a counterclaim for contract that had been brought in response to a construction lien action could proceed under construction lien procedure even though the construction lien had been dismissed. In so holding, Carthy J.A., at para. 12, delved into the policy behind the Construction Lien Act:The Construction Lien Act serves a specialized purpose in a narrow field. A lien claimant may commence an action, provide shelter for other claimants, obtain a form of execution before judgment, and proceed to trial in summary fashion without production of documents, discovery or other interlocutory steps except by leave. A plaintiff may join with a lien claim a claim for breach of contract and a defendant may counterclaim in respect of any claim against the plaintiff. There may also be cross-claims and third party claims. There are no appeals from interlocutory orders. [34] As discussed above, this specialized procedure promotes the goal of efficiency. In my view, the Construction Act now adds construction dispute adjudication to this mix of remedies and procedure specialized to this field. The appeal provision in s. 71 of the Construction Act is an important part of this statutory scheme.
[35] In light of the Construction Act’s purpose of promoting efficiency, and in light of the clear trend toward a broad interpretation of the term “judgment” over a number of years, I see no persuasive reason why an appeal from an order arising from a party seeking to enforce an adjudicator’s determination would not fall under the appeal provision of the Construction Act.
[36] In conclusion, adjudication under Part II.1 of the Construction Act is a “proceeding under the Act” and the motion judge’s order on the enforceability of the adjudicator’s determination is a “judgment … under [the] Act”. The appeal therefore lies to the Divisional Court. . Arcamm Electrical Services Ltd. v. Avison Young Real Estate Management Services LP
In Arcamm Electrical Services Ltd. v. Avison Young Real Estate Management Services LP (Ont CA, 2024) the Ontario Court of Appeal considered an appellate motion to quash an appeal, which appeal was from a successful Construction Act (CA) summary judgment [under CJA R20].
Here the court considers competing appeal routes:[5] In the motion now before this court, Arcamm seeks an order quashing the Queen appeal for want of jurisdiction (the “Motion”). It submits that the Judgment is a final order captured by s. 71 of the Construction Act and, therefore, Queen’s appeal lies to the Divisional Court, not to this court. Section 71 provides that “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.”
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[11] Arcamm submits that Queen’s appeal lies to the Divisional Court, pursuant to s. 71 of the Construction Act, and this court is without jurisdiction to hear it. It relies on the fact that its Claim was brought pursuant to the Construction Act and arose from unpaid invoices for which it registered a construction lien. It also relies on caselaw from this court which states that no right of appeal lies to it on a Construction Act matter.
[12] Queen submits this court has jurisdiction to hear its appeal. It notes that, in granting Judgment, the motion judge acted pursuant to r. 20 and r. 20 motions are not provided for in the Construction Act. Rather, r. 20 is promulgated pursuant to the Courts of Justice Act, R.S.O. 1990, c. C. 43. Further, the Judgment was based on Arcamm’s non-statutory claim in contract. Therefore, because the Judgment is a final order of a judge of the Superior Court of Justice, pursuant to s. 6(1)(b) of the Courts of Justice Act, this court has jurisdiction to hear the appeal.
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[13] I accept Queen’s submission for two reasons.
[14] First, the fact the Claim is styled as a proceeding under the Construction Act does not mean that the Construction Act automatically governs the appeal route. The jurisdiction of the court is governed by the substance of the order made: Dal Bianco v. Deem Management Services Limited, 2020 ONCA 585, 82 C.B.R. (6th) 161, at para. 11, quoting RREF II BHB IV Portofino, LLC v. Portofino Corporation, 2015 ONCA 906, 33 C.B.R. (6th) 9, at para. 12. In Dal Bianco, the appeal of a Construction Act claim lay to this court because the substance of the order under appeal related to proceedings authorized by the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3.
[15] In this case, the Judgment was not made under the Construction Act. On the contrary, the motion judge refused to grant relief under that Act. Instead, the source of the motion judge’s jurisdiction was r. 20, a rule promulgated pursuant to the Courts of Justice Act.
[16] Further, the relief granted was based on a claim for damages in contract for unpaid invoices, a non-statutory cause of action. The grounds of appeal highlight the significance of this point. Queen’s primary ground of appeal is its contention that the motion judge erred in failing to find a genuine issue requiring a trial, specifically by failing to consider the defence of contributory fault and whether Arcamm’s conduct caused or contributed to the same damages claimed in contract. Self-evidently, these issues are not matters governed by the Construction Act; they are specific to the application of the test under r. 20.
[17] Second, the cases on which Arcamm relies are fundamentally different from the present case. Arcamm referred to cases including Villa Verde L.M. Masonry Ltd. v. Pier One Masonry Inc. (2001), 2001 CanLII 7060 (ON CA), 54 O.R. (3d) 76 (C.A.); Great Northern Insulations Services Ltd. v. King Road Paving and Landscaping Inc., 2021 ONCA 367, 156 O.R. (3d) 1; and Soo Mill and Lumber Company Ltd. v. Possebon et al., 2023 ONCA 215. However, all of these cases proceeded to trial on the construction lien track under the Construction Act. In this case, r. 20 was the source of the court’s jurisdiction below; the Judgment was not made in reliance on the Construction Act.
[18] As the Judgment flowed from a r. 20 determination, Queen’s appeal lies to this court. . 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.
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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]
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