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Appeal - Amending Notice of Appeal. McLean v. Connell
In McLean v. Connell (Ont CA, 2025) the Ontario Court of Appeal granted a motion to amend a Notice of Appeal [under RCP 61.08]:[37] Because Ms. Connell’s appeal has been perfected, she requires leave to amend her notice of appeal: see r. 61.08(3). In deciding whether to grant leave under r. 61.08(3), the court must consider the same factors relevant to a motion for an extension of time: T.O. Estate v. D.O., 2024 ONCA 73, at paras. 7-8. The test for granting an extension requires the appellant to show that the “justice of the case” requires it. Important considerations include whether the appellant formed an intention to appeal within the relevant time period; the length of the delay in filing and any explanation for it; prejudice to the respondent; and the merits of the appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15; Rizzi v. Marvos, 2007 ONCA 350, 85 O.R. (3d) 401, at paras. 16-17.
[38] I find that the justice of the case supports granting leave. The merits of the proposed costs appeal are debatable, owing to the broad discretion given to judges to fix costs and the absence of any obvious error of principle in Hughes J.’s costs endorsement. However, Ms. Connell’s filing of her Supplementary Notice of Appeal on June 4, 2025 shows that she clearly formed an intention to appeal the May 21, 2025 costs order within the relevant period; she could not have sought to amend before the appeal was perfected because the costs decision was released after perfection; she moved promptly to amend her notice of appeal; and I do not find that granting leave to amend will prejudice Mr. McLean, so long as the costs appeal is heard together with the main appeal on September 4, 2025.
[39] I am therefore directing that Ms. Connell’s Supplementary Notice of Appeal of the May 21, 2025 costs decision be accepted for filing. I am also directing that the appeal of that order shall be heard together with the appeal in COA-24-CV-1301 on September 4, 2025.
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