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Extending Time - Generally

. Gefen v. Gaertner

In Gefen v. Gaertner (Ont CA, 2021) the Court of Appeal considers usefully when an appeal timeline commences running, dealing with varying dates from when the decision is released and a later date where the full details of the order finally became know:
[7] The moving party submits that the time for appeal generally runs from the date of the release of the reasons, not from the date that the judgment is finally settled and issued. That proposition, as a general rule, is well supported by authority: Fontaine v. Canada (Attorney General), 2012 ONCA 206, 213 A.C.W.S. (3d) 7.

[8] The general rule may be displaced where the judgment provides otherwise, or where the judgment is uncertain on a point, or where something of substance has been missed. In such cases, time runs from the date of entry of the judgment, not the date of pronouncement: Fontaine, at paras. 59-60; Byers (Litigation Guardian of) v. Pentex Print Master Industries Inc. (2003), 2003 CanLII 42272 (ON CA), 62 O.R. (3d) 647 (C.A.), at paras. 31, 33, 34, 36, 43.

[9] It is equally well settled, however, that the appeal itself is from the judgment and not from the reasons: Ross v. Canada Trust Company, 2021 ONCA 161, 458 D.L.R. (4th) 39, at para. 53. The content of para. 5 of the judgment was not a part of the trial judge’s “summary of disposition” at para. 248 of her reasons, where she summarized the relief that she granted.

[10] It was not until the judgment was finally settled, and issued, that the responding party, Henia Gefen, became aware that the content of para. 5 would form part of the judgment of the court. It is reasonable, in our view, to treat October 16, 2020 as the date on which time to appeal began to run and it is not, therefore, out of time.

[11] Quite apart from the foregoing, the two appeals are factually connected, the moving party has identified no prejudice as a result of an extension of time and it would have been in the interests of justice that an extension be granted, had it been necessary.
. CAMPP Windsor Essex Residents Association v. City of Windsor

In CAMPP Windsor Essex Residents Association v. City of Windsor (Div Ct, 2021) the Divisional Court set out a general test for extending time under the RCP:
[5] The test for an extension of time is as follows:
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:
(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;

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

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

(d) the merits of the proposed appeal.[4]
. Sokoloff v. Bateriwala

In Sokoloff v. Bateriwala (Div Ct, 2020) the Divisional Court heard an appeal from the dismissal of a master's motion to set aside the dismissal for delay of an action:
[3] The Master correctly stated and followed the test to be met by the moving party:
(a) provide a reasonable explanation for the delay;

(b) satisfy the court that the deadline was missed through inadvertence;

(c) demonstrate that the motion to set aside the dismissal was brought promptly; and

(d) rebut the presumption of prejudice; if the presumption is rebutted, the burden then shifts to the respondents to demonstrate that they would suffer prejudice if the dismissal order is set aside.
The test is to be applied contextually, weighing all four factors.[5]

....

[23] In oral argument, the appellants submitted that the Master erred in finding prejudice where none was shown, and in over-emphasizing delay where there was no prejudice. The appellants submitted that it is a rare case where a Registrar’s dismissal is upheld absent prejudice.[9]

[24] First, prejudice was shown – by reason of the unrebutted presumption. It was for the plaintiff to establish that evidence has been preserved and will be available for trial – that is the consequence of presumed prejudice. Where so much time has gone by, documentary evidence has not been preserved, an affidavit of documents has still not been prepared, and evidence of witnesses who are not parties to the litigation has not been preserved, it is open to the court to find that the presumption has not been rebutted.

[25] Second, I do not agree that it is only a “rare case” that will be dismissed for delay absent a finding of prejudice. In the words of the Court of Appeal, prejudice is a “key” consideration, but it is neither the sole nor a necessary condition for setting aside a dismissal order. In Finlay, relied upon by the appellants, the motions judge failed to consider all the Reid factors and to weigh his findings altogether when exercising his discretion.[10] Thus the motions judge in Finlay “fell into the very error” identified in Scaini v. Prochnicki: the “too "rigid" approach that to set aside a registrar's dismissal order, a moving party must satisfy each factor. Instead, the Court of Appeal held that the motions judge should have followed a "contextual" approach in which all relevant considerations are weighed to determine the just result.[11]

[26] On the record before her, the Master was entitled to find that the presumption of prejudice had not been rebutted. That is sufficient to dispose of this point and this appeal. Even if the presumption of prejudice had been rebutted, which it was not, the other three factors weigh so heavily against the appellants in this case that they would justify upholding the dismissal order. Such a conclusion is not precluded by Finlay and Scaini.
. Raitman v Medallion Development Corporation

In Raitman v Medallion Development Corporation (Ont CA, 2015) the Court of Appeal quoted the criteria to extend time under the Rules of Civil Procedure as follows:
[3] As noted by Gillese J.A. in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 (CanLII), at para. 15, the test on a motion to extend time is well settled. The over-arching principle is whether the justice of the case requires that an extension be given. Factors to be considered include:
- whether the moving party formed a bona fide intention to appeal within the relevant time period;

- the length of, and explanation for, the delay in filing;

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

- the merits of the proposed appeal.
. Wilson v Fatahi-Ghandehari

In Wilson v Fatahi-Ghandehari (Ont CA, 2019) the court sets out the test for extension of time:
[9] The test for on a motion for an extension of time to appeal under r. 3.02(1) of the Rules of Civil Procedure is well-settled. The overriding principle is whether the “justice of the case” requires that an extension be given. The court must take into account all relevant considerations, including (a) whether the moving party formed a bona fide intention to appeal within the relevant time period; (b) the length of, and explanation for, the delay in filing; (c) any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and (d) the merits of the proposed appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 (CanLII), 114 O.R. (3d) 636 (in Chambers), at para. 15. This court has the inherent jurisdiction to control its own processes and has the express power under s. 140(5) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, to stay or dismiss a proceeding as an abuse of process: Oelbaum v. Oelbaum, 2011 ONCA 300 (CanLII), 94 R.F.L. (6th) 251, at para. 9.
. Lee v. Richcraft Homes Ltd.

In Lee v. Richcraft Homes Ltd. (Ont CA, 2019) the Court of Appeal sets out the test for extending time in court proceedings:
[14] The test for extending time is whether the justice of the case requires that an extension be given. While each case depends on its own circumstances, the court will typically take into consideration (a) whether the moving party formed a bona fide intention to appeal within the relevant time period; (b) the length of, and explanation for, the delay in filing; (c) any prejudice to the responding parties occasioned by the delay; and (d) the merits of the proposed appeal. This is the appropriate test whether the motion is to extend time to appeal, or to extend time to file a motion for leave to appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 (CanLII), 114 O.R. (3d) 636, at para. 15.
Additionally, the court drew the distinction between R21 and R25.11 motions, and stated the test for leave to appeal to the Divisional Court:
[18] Richcraft’s motion to strike was brought under r. 21, as a motion to dismiss a claim that discloses no reasonable cause of action. Since rule 21 motions are required to be heard by judges, the master was unable to hear the motion under this rule. Instead, he agreed at the hearing to consider the motion to strike under r. 25.11 (which permits the court to strike, with or without leave to amend, a pleading that is scandalous, frivolous or vexatious, or an abuse of the process of the court).

[19] In Panalpina Inc. v. Sharma (1988), 29 C.P.C. (2d) 222, Master Sandler helpfully explained the difference between motions to strike out pleadings under r. 25.11 and r. 21.01: at pp. 234-35, 241. He correctly stated that, to determine whether there is jurisdiction, the master first needs to decide which rule is the real basis for the motion, regardless of what the moving party is claiming: at p. 231; see also A.B. v. Halton Children’s Aid Society, 2016 ONSC 6195 (Master) (CanLII), at paras. 21-23. The master hearing the motion in this case was required to adjourn the motion to a judge, if it was in fact a motion to strike for failure to disclose a reasonable cause of action, under r. 21. Here, the primary reason for the master’s dismissal of the claim without leave to amend was that Mr. Lee lacks standing. Standing is a matter that is properly addressed in a r. 21 motion: see George-McCool v. Toronto (City) Police Service Board, 2008 CanLII 54778 (Ont. S.C.), at para. 6. To the extent that the master’s decision was based on Mr. Lee’s lack of standing, it appears to have been made outside the master’s jurisdiction under r. 25.11.

[20] The master also concluded that the claim was “frivolous” and “an abuse of process”, apparently because of the deficiencies in Mr. Lee’s pleading. “As the exercise of the power set out in rule 25.11 denies a litigant a full trial of the merits of the claim, it must be exercised only in the clearest of cases”: Wernikowski v. Kirkland, Murphy & Ain (1999), 1999 CanLII 3822 (ON CA), 50 O.R. (3d) 124 (C.A.), leave to appeal to SCC refused, [2000] S.C.C.A. No. 98, at para. 12; M.A.S. (Litigation guardian of) v. Ludwig (2004), 2004 CanLII 30968 (ON CA), 245 D.L.R. (4th) 149 (Ont. C.A.), at p. 154. Reading the statement of claim generously, Mr. Lee’s claim is for damages for the loss of his business and equipment as a result of Richcraft’s conduct in failing to deal with his complaints about the other tenant and in terminating the lease. The master ought to have considered whether the pleadings deficiencies could have been addressed through amendments to the statement of claim under rules 26 and 5.04(2), to clarify Mr. Lee’s personal claim based on his plea of harassment and/or to add Jay-Pee, the tenant under the lease, as a plaintiff. See for example Mazzucca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768, and in particular (with the abolition of the doctrine of special circumstances), the concurring reasons of Laskin J.A. in that case.

[21] The test for leave to appeal an order of the Divisional Court exercising its appellate jurisdiction is set out in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479 (C.A.), at pp. 480-81; see also Enbridge, at paras. 19-22. Typically, the matter will present an arguable question of law or mixed fact and law requiring the interpretation of Ontario statutes or regulations, principles of law or, where the point in issue involves a question of public importance, a municipal by-law, or agreement. The court may also grant leave to appeal when there has been a departure from established principles of law that would result in a miscarriage of justice, or when there has clearly been an error in a judgment or order of the Divisional Court: see Sault Dock at p. 481; Enbridge at paras. 21-22.


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