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Time - Extending Time for Leave to Appeal

. Hughes v. Hughes

In Hughes v. Hughes (Div Ct, 2021) the Divisional Court considered a motion to extend time for leave to appeal:
[11] As held in The Catalyst Group Inc. v. Moyse, 2016 ONSC 554 (Div. Ct.), at para. 2, in deciding whether to grant an extension of time on a motion for leave to appeal, the Court is to consider the following four factors, with overarching regard to the justice of the case:
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. Prejudice to the responding party; and

d. The merits of the motion for leave to appeal.

[21] In Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 16 and Catalyst, at para. 13, it was 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…”

[22] In order to get leave to appeal, Ms. Hughes would have to succeed on one of the two branches of Rule 62.02(4) [SS: Grounds on Which Leave May Be Granted] of the Rules of Civil Procedure.

[23] Under the first branch, Rule 62.02(4)(a), Ms. Hughes would have to show that “there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the panel hearing the motion, desirable that leave to appeal be granted”. The conflict between the decisions must be in respect of a conflict in the legal principles applied: Smith v. Smith, 2010 ONSC 2113. Ms. Hughes has not identified any decisions that conflict with the motion judge’s decision.

Under the second branch, Rule 62.02(4)(b), Ms. Hughes would have to show that there appears to be “good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted”. To establish that there is “good reason to doubt the correctness of the decision”, Ms. Hughes would have to show that the decision is open to “very serious debate” and that the matter should be resolved by a higher level of judicial authority: Trade Capital v De Maria, 2015 ONSC 5409, at para. 9.

[24] The primary error identified by Ms. Hughes is her position that the motion judge was biased against her. In support of this position, she points to a statement made by the motion judge in his decision about the non-taxable portion of her income. She also says that the motion judge made certain statements during a pre-hearing conference and the hearing that led her to believe that he had pre-determined the issues on he motion. Mr. Hughes disputes that the motion judge made the statements. There is no transcript from the proceedings.

[25] As held in Health Genetic Centre Corp. (Health Genetic Center) v. New Scientist Magazine, 2019 ONCA 977, at para. 9, Ms. Hughes has the onus of demonstrating a reasonable apprehension of bias and the test she has to meet is “whether an informed person viewing the matter realistically and practically – and having thought the matter through – would conclude that it was more likely than not that the trial judge, whether consciously or unconsciously, would not decide fairly”. At para. 10, the Court of Appeal also emphasized that this is a heavy burden and that the “strong presumption of judicial impartiality is not easily displaced”. In addition, as held at para. 11, an allegation of apprehension of bias is to be raised as soon as reasonably possible. In this case, the issue was not raised with the motion judge. In addition, while it is evident that Ms. Hughes was not happy with the outcome of the decision and with certain comments made by the motion judge, it is hard to see how she would satisfy the heavy burden of demonstrating a reasonable apprehension of bias.

[26] Looking at the decision as a whole, there is no reason to doubt its corrrectness. Ms. Hughes chose to unilaterally disregard an agreement about shared parenting time. The motion judge considered the circumstances of the case and made factual findings that led him to the conclusion that the “week about” schedule should be restored. There was no error in the legal principles he applied and he was entitled to draw the inferences he made based on the record before him. With respect to the child support issues, the motion judge simply deferred that decision to another date to be decided with the benefit of a better record and better information about Mr. Hughes’s employment circumstances.

[27] On either branch of test under Rule 62.02(4), Ms. Hughes would have to establish that the appeal raises issues of general importance. The proposed appeal raises no such issues. The proposed appeal is limited to the issues between the parties and has no broader legal implications.


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