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Time - Extending Time for Appeal

. Burns v. Brown

In Burns v. Brown (Ont CA, 2021) the Court of Appeal considered extending time for an appeal:
[21] The appellant’s inordinate delay in perfecting his appeal and the absence of a reasonable explanation for most of that delay weigh heavily against his request for an extension. As well, they indicate that he did not maintain an intention to appeal throughout the relevant period of time: Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 5.
. 2650971 Ontario Inc. v. Shameti

In 2650971 Ontario Inc. v. Shameti (Ont CA, 2021) the Court of Appeal extended the time to commence an appeal when the parties only instructed counsel to serve the Notice of Appeal six days after the 30-day deadline. This varies from past doctrine that held that the date of the intent to appeal was central, even though the party was incidentally late.

. Deo v. Sheasby-Coleman

In Deo v. Sheasby-Coleman (Div Ct, 2021) the Divisional Court set out the test for extending time to move for leave to appeal:
[17] As held in The Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 554, at para 2, the test to be applied on a motion to extend the time to bring a motion for leave to appeal is as follows:
In granting an extension of time, the court considers four factors. The overarching consideration is the justice of the case. Those factors are:

1. whether the moving party formed an intention to appeal within the relevant period;

2. the length of the delay and the explanation for it;

3. prejudice to the responding party; and

4. the merits of the appeal.
. 690 King Street Corp. v. Desco Plumbing and Heating Supply Inc.

In 690 King Street Corp. v. Desco Plumbing and Heating Supply Inc. (Div Ct, 2021) the Divisional Court sets out the time extension test for filing an appeal:
[3] The test on a motion to extend time for filing a notice of appeal is well-settled. As recently stated by van Rensburg, J.A. in 40 Park Lane Circle v. Aiello, 2019 ONCA 451 (CanLII) at para. 2, in the context of the Rules of Civil Procedure but equally applicable to an extension of time under the Construction Act:
[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
. Heliotrope Investment Corporation v. 1324789 Ontario Inc.

In Heliotrope Investment Corporation v. 1324789 Ontario Inc. (Ont CA, 2021) the Court of Appeal considered the test for extension of time for commencing an appeal:
[23] Rule 61.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires that an appeal to this court be commenced “within 30 days after the making of the order appealed from”. The court may, however, exercise its discretion pursuant to r. 3.02(1) to extend the time for service of a Notice of Appeal that was not served within the time stipulated by r. 61.04(1).

[24] The test for granting an extension of time to file a Notice of Appeal is well-settled. The factors to be considered are the following:
a. whether the appellant formed an intention to appeal within the relevant period;

b. the length of the delay and explanation for the delay;

c. prejudice to the respondent;

d. the merits of the appeal; and

e. whether “the justice of the case” requires it: Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401, at para. 16.
[25] As this court held in Bratti v. Wabco Standard Trane Inc., 1994 CanLII 1261 (Ont. C.A.), at p. 3: “While appellate courts have considered a number of different factors in determining whether to grant leave to extend the time to appeal, the governing principle is simply whether the “justice of the case” requires that an extension be given.” See also Chandra v. Canadian Broadcasting Corporation, 2016 ONCA 448 (CanLII) 26.
. Lafontaine v. Grant

In Lafontaine v. Grant (Ont CA, 2019) the Court of Appeal enumerates the four criteria for extending time to appeal:
[2] The test applicable on a motion to extend the time to appeal is set out in Reid v. College of Chiropractors of Ontario, 2016 ONCA 779 (CanLII), at para. 14. The governing principle is whether the “justice of the case” requires that an extension be given. To that end, courts consider four factors, as applied to the circumstances of the case, together with the overall interests of justice.
. Howard v Martin

In Howard v Martin (Ont CA, 2014) the Court of Appeal re-stated the legal test for extending time to file an appeal as follows:
THE TEST FOR EXTENDING TIME

[26] The test on a motion to extend time for filing a notice of appeal 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:
1. whether the moving party formed a bona fide intention to appeal within the relevant period;

2. the length of, and explanation for, the delay in filing;

3. any prejudice to the responding party that is caused, perpetuated or exacerbated by the delay; and,

4. the merits of the proposed appeal.
See Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 (CanLII), 2013 ONCA 131, at para. 15, and Rizzi v. Mavros, 2007 ONCA 350 (CanLII), 2007 ONCA 350, 85 O.R. (3d) 401, at para. 16.
. Maracle III v. Miracle

In Maracle III v. Miracle (Ont CA, 2017) the Court of Appeal restates the considerations to be applied when considering extending the time for applying for leave to appeal:
[3] The parties agree on the applicable principles governing this motion as described at paras. 14 and 15 of Reid v. College of Chiropractors, 2016 ONCA 779 (CanLII):
The test on a motion to extend time is well-settled. The governing principle is whether the “justice of the case” requires that an extension be given: Rizzi v. Mavros, 2007 ONCA 350 (CanLII), 85 O.R. (3d) 401, at para. 17; Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 (CanLII), 114 O.R. (3d) 636, at para. 15. Each case depends on its own circumstances. The relevant considerations include:
a) whether the moving party formed a bona fide intention to seek leave to appeal within the relevant time period;

b) the length of, and explanation for, the delay in filing;

c) any prejudice to the responding party, caused, perpetuated or exacerbated by the delay; and

d) the merits of the proposed appeal.
See Rizzi, at para. 16; Froese, at para. 15.

This court has held that lack of merit alone can be a sufficient basis on which to deny an extension of time, particularly in cases such as this where the moving party seeks an extension of time to file a notice of leave to appeal, rather than an extension of time to file a notice of appeal: Miller Manufacturing and Development Co. v. Alden, [1979] O.J. No. 3109 (C.A.), at para. 6; Froese, at para. 16.
. Sutherland Lofts Inc. v. Peck

In Sutherland Lofts Inc. v. Peck (Ont CA, 2017) the Court of Appeal briefly restates the criteria to be applied when deciding to grant an extension of time to file an appeal:
[3] The issues the court considers when determining whether to grant an extension of time to appeal are: (1) whether the applicant formed a bona fide intention to appeal within the time limit; (2) the length of and explanation for the delay; (3) any prejudice to the respondent; (4) the merits of a potential appeal; and (5) whether the justice of the case requires that an extension be given. See, for example: Howard v. Martin, 2014 ONCA 309 (CanLII) at para. 26, 42 R.F.L. (7th) 47 (in Chambers); Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 (CanLII) at para. 15, 114 O.R. (3d) 636 (in Chambers); and Rizzi v. Mavros, 2007 ONCA 350 (CanLII) at para. 16, 85 O.R. (3d) 401 (in Chambers).
. MCC Mortgage Holdings Inc. v. Mundulai

In MCC Mortgage Holdings Inc. v. Mundulai (Ont CA, 2020) the Court of Appeal set out the accepted test for extending time to appeal:
[17] I begin with the request for an extension of time to appeal from the decision of McCarthy J. of July 23, 2019 refusing to set aside the default judgment.

[18] The relevant factors are:
1. Whether the appellant had an intention to appeal within the relevant period

2. The length of the delay and the explanation for the delay

3. Any prejudice to the respondent

4. The merits of the appeal

5. Whether the justice of the case requires granting an extension
The governing principle is whether the justice of the case requires that an extension be granted: see Chandra v. Canadian Broadcasting Corporation, 2016 ONCA 448, 349 O.A.C. 93, at paras. 13-14.
. R. v. Brooks

In R. v. Brooks (Ont CA, 2020) the Court of Appeal set out the test for extending time to appeal:
[4] The applicant brings this application for an extension of time to appeal. The deadline for commencing the appeal was over 11 years ago. For the reasons that follow, the application is dismissed.

(b) Analysis

[5] The test on a motion for an extension of the deadline to appeal is well established in this court’s jurisprudence. Factors that may be relevant to the exercise of the court’s discretion include:
(a) whether the applicant formed a bona fide intention to appeal within the appeal period;

(b) whether the applicant has accounted for or explained the delay;

(c) whether the proposed appeal has merit;

(d) the length of the delay;

(e) whether there is any prejudice to the respondent; and

(f) whether the applicant has taken the benefit of the judgment.
See: R. v. Ansari, 2015 ONCA 891, 128 O.R. (3d) 511, at paras. 22-26 and R. v. Menear (2002), 2002 CanLII 7570 (ON CA), 162 C.C.C. (3d) 233 (Ont. C.A.), at paras. 20-21.

[6] Ultimately, “the main consideration is whether the applicant has demonstrated that justice requires that the extension of time be granted”: Menear, at para. 21.
. Kefeli v. Centennial College of Applied Arts and Technology (2002)

In Kefeli v. Centennial College of Applied Arts and Technology (2002) the court sets out the test for extension of time to file an appeal:
[14] In determining whether to extend the time for filing a notice of appeal the court will generally consider whether the appellant formed an intention to appeal within the relevant time period, the length of the delay, any prejudice to the respondent, and the merits of the appeal. The general rule that the appellant must have formed an intention to appeal within the relevant time period and must provide a reasonable explanation for any subsequent delay is subject to a broader principle that an extension should be granted if the justice of the case requires it: Frey v. MacDonald [1] [1].
. Codina v. Canadian Broadcasting Corporation

In Codina v. Canadian Broadcasting Corporation (Ont CA, 2020) the Court of Appeal considered the test for extending time to perfect an appeal:
[1] The moving party moves for an extension of time to perfect her appeal from the October 17, 2019 dismissal of her defamation action following a successful s. 137.1 (“Anti-SLAPP”) motion brought by the responding parties and from the corresponding costs endorsement. The responding parties oppose the moving party’s motion, submitting that she meets none of the well-established criteria for an extension of time.

[2] These well-established criteria include:
i. the continuing intention to appeal during the period required for perfection;

ii. the length of and explanation for the delay;

iii. the prejudice to the respondent; and

iv. the merits of the appeal.
The overarching consideration is whether the justice of the case requires the extension. See Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 4; Auciello v. Mahadeo, 2016 ONCA 414, at para. 12.
. Krawczynski v. Ralph Culp and Associates Inc.

In Krawczynski v. Ralph Culp and Associates Inc. (Ont CA, 2019) the Court of Appeal set out the test for extending time for perfection of leave to appeal:
(1) Test on a motion for an extension of time

[9] Pursuant to r. 3.02(1), this court may extend any time limit prescribed by the Rules of Civil Procedure on such terms as are just. In Issai v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 4, Weiler J.A. identified the following five factors as relevant in determining whether to grant an extension of time to perfect an appeal:
(1) whether the appellant formed an intention to appeal within the relevant period;

(2) the length of the delay and explanation for the delay;

(3) any prejudice to the respondent;

(4) the merits of the appeal; and

(5) whether the “justice of the case” requires it.
[10] A motion to extend the time for leave to appeal in the bankruptcy context was discussed by Strathy J.A (as he then was) in Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd., 2014 ONCA 500, 17 C.B.R. (6th) 91, at paras. 2 and 26:
Rule 31(1) of the Bankruptcy and Insolvency General Rules, C.R.C., c. 368, provides that a notice of appeal must be filed within ten days after the day of the order appealed from or within such further time as a judge of this court stipulates.

[…]

The overarching principle is whether the justice of the case requires that an extension be granted. The relevant factors may include:

(a) whether the applicant had a bona fide intention to appeal before the expiration of the appeal period;

(b) the length of and explanation for the delay in filing;

(c) any prejudice to the responding parties caused by the delay; and

(d) the merits of the proposed appeal.

See Howard v. Martin, 2014 ONCA 309 (CanLII); Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 (CanLII), 114 O.R. (3d) 636. See also Braich (Re), 2007 BCCA 641 (CanLII).
[11] This approach was adopted by this court in National Telecommunications Inc. v. Stalt Telcom Consulting Inc. (2018), 64 C.B.R. (6th) 169. At para. 17 Simmons J. A. stated:
…the overriding consideration is whether the justice of the case requires an extension and that the enumerated factors are both non-exclusive and may vary in importance depending on the circumstances.
. Alaycheh v. Alaycheh

In Alaycheh v. Alaycheh (Div Ct, 2020) the Divisional Court set out the test for extending time for an appeal:
Test on Motion to Extend

[13] The test on a motion to extend time is well-settled, requiring the court to consider:
1. whether a party formed a bona fide intention to appeal within the time limit;

2. prejudice to the responding party as result of the delay;

3. the length of delay and reasons for the delay; and

4. the merits of the proposed appeal.
No one factor is determinative (see LBP Holdings Ltd. v. Hycroft Gold Corp, 2018 ONSC 1794 (S.C.J.) at para 48).

[14] In the recent case of Blake v. Blake, 2019 ONSC 5724 (S.C.J.) Favreau, J. confirmed at para. 12 that ultimately all of the elements of the test are to be considered together, and the overarching consideration is what the justice of the case requires.


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