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Appeals - Dismissal for Delay

The responding party may move before the Registrar, or the Registrar may give notice administratively, to dismiss an appeal for delay [R61.13, R61.13.0.1, R61.16(7-8)].

. Robson v. Law Society of Ontario

In Robson v. Law Society of Ontario (Ont CA, 2023) the Court of Appeal considered the status of a registrar's 'administrative dismissal', here in mucky appellate interlocutory proceedings:
[27] Second, properly characterized, the Registrar’s dismissal is neither an order nor a decision within the meaning of r. 61.16(5). The parties agree the Registrar did not make an order so no more need be said on that score. In my view, in dismissing the Review Motion, the Registrar did not make a decision either. The Registrar simply did as the Panel Order dictated and administratively dismissed the Review Motion. It was the Panel that made the decision stipulating that failure to comply with the deadline would result in dismissal of the Review Motion – not the Registrar.

[28] The wording of the email correspondence from the Court staff to the parties confirms this: “As per the [Panel Order], if you did not perfect by that time, the matter would be administratively dismissed” and “[T]he above-noted motion has now been administratively dismissed in accordance with the Panel’s decision dated December 18, 2023” (emphasis added).

[29] I do not accept that Sickinger suggests otherwise. It is correct that, at para. 1 of Sickinger, Brown J.A. refers to the “administrative dismissal” of the appellant’s appeal for delay. However, he immediately defines that act as the “Dismissal Order” and later describes the process the Registrar followed in making the Dismissal Order. The Registrar sent the parties a Notice of Intention to Dismiss for Delay, advising them the appeal would be dismissed unless perfected within a specific time. When the appeal was not perfected in time, the Registrar issued the Dismissal Order: Sickinger, at paras. 16-17. Therefore, in Sickinger, as the affected party, the appellant could move under r. 61.16(5) to set aside the Registrar’s order.

[30] It is somewhat unfortunate that the January 4, 2024 Email indicated that if Mr. Robson intended to perfect the Review Motion, a single judge motion to reopen and extend the deadline to perfect could be filed with the Court. However, jurisdiction can often be a tricky matter, as the long-standing debate between interlocutory and final matters exemplifies. In any event, it is for the Court to decide whether it has jurisdiction. For the reasons given, in my view, a single judge lacks jurisdiction to hear the Current Motion.
. R. v. S.M.C.

In R. v. S.M.C. (Ont CA, 2023) the Court of Appeal had earlier sent a criminal appeal matter to 'Purge Court', which - not practicing criminal law - I have never heard of before. However the court withdrew that earlier order and ordered the appeal dismissed as abandoned for delay:
[13] At that time, despite his non-compliance, the lack of perfection of the appeal, the repeated warnings and no change in the status, the appellant indicated that it was not his intention to abandon his appeal. Rather, he stated that he had a two-hour Legal Aid certificate for an opinion on the merits of his appeal. This was the first that the Crown had heard of any Legal Aid certificate, and Mr. Achampong offered that the first he heard of it was that afternoon.

[14] Our system of justice cannot operate effectively if directions and orders designed to advance a party’s appeal are flouted and ignored. The conduct of this appeal is unfair to all justice system participants be they opposing counsel, members of the judiciary or court administration, complainants, or other litigants wanting to have their cases heard. See also R. v. Villanti, 2020 ONCA 436, 151 O.R. (3d) 289.

[15] Rarely will an appeal be deemed to be abandoned over the appellant’s objection. However, here the non-compliance has been egregious, warnings have been repeatedly disregarded, and the court has no confidence that this appeal will be advanced. We conclude from the inactivity that the appeal should be deemed to be abandoned as the Crown requests. Accordingly, we order that the appeal be dismissed as abandoned.

[16] Following oral argument, we ordered that the matter be adjourned to the February 24, 2023 Purge Court pending release of these reasons. Given our order that the appeal be dismissed as abandoned, such an attendance is unnecessary, and that date is vacated.
. Capreit Limited Partnership v. Hume and McFarlane

In Capreit Limited Partnership v. Hume and McFarlane (Div Court, 2022) the Divisional Court judge, finding that there were rules for dismissing an appeal for delay by a Registrar, but none by a judge, applied the Registrar rules by analogy:
[10] Subrule 61.13(3.1) authorizes the Registrar to dismiss an appeal for delay. While the Rules do not specifically address a judge’s authority to dismiss an appeal for delay, r. 1.04(2) provides that where matters are not provided for in the Rules, the practice shall be determined by analogy to them. I find that I am able to dismiss the within appeal for delay by analogy given that the appellant has failed to perfect its appeal and is otherwise in default of this Court’s directions. ...
. Hategan v. Frederiksen

In Hategan v. Frederiksen (Ont CA, 2022) the Court of Appeal considers the test for setting aside an administrative dismissal of an appeal for delay, and denying an extension of time to perfect the appeal:
[41] The relevant factors on this motion to extend the time to perfect an appeal and to set aside a Registrar’s dismissal are not in dispute: Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 4. They are:
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.
. Sheth v. Randhawa

In Sheth v. Randhawa (Ont CA, 2022) the Court of Appeal considered a motion to set aside a clerk's dismissal for delay of an appeal:
The test for setting aside an administrative dismissal for delay and extending the time for perfection

[15] The test on a motion of this kind is well-established. The ultimate question is whether the justice of the case warrants the order requested. Factors to be considered in making the decision are: (i) whether the appellant formed an intention to appeal within the appeal period; (ii) the length of the delay; (iii) the explanation for the delay; (iv) the merits of the proposed appeal; and (v) prejudice to the responding parties. See, for example, Paulsson v. University of Illinois, 2010 ONCA 21, at para. 2; Krawczynski v. Ralph Culp and Associates Inc., 2019 ONCA 399, 69 C.B.R. (6th) 163, at para. 9; Frey v. MacDonald (1989), 33 C.P.C. (2d) 13 (Ont. C.A.), at p. 14; Enbridge Gas Distribution v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.
The balance of the case [paras 16-57] is a useful walk-through of these criteria on the facts of the case.

. Kudrocova v. Kronberger

In Kudrocova v. Kronberger (Ont CA, 2021) the Court of Appeal considered the test for setting aside a Registrar's dismissal for delay:
[6] The factors to consider on a motion to set aside a Registrar’s dismissal are 1) whether the moving party had an intention to appeal within the time for bringing an appeal; 2) the length of the delay and any explanation for the delay; 3) any prejudice to the respondent caused by the delay; and 4) the justice of the case: Paulsson v. University of Illinois, 2010 ONCA 21, at para. 2. The overriding consideration on a motion to set aside a dismissal order is the justice of the case, which can include consideration of the merits of the appeal: Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731, at para. 8 (in that case the appeal raised serious issues).
. Kandolo-Kwabanza v College of Physicians and Surgeons of Ontario

In Kandolo-Kwabanza v. College of Physicians and Surgeons of Ontario (Ont CA, 2014) the Court of Appeal set out the factors to be applied when deciding that an appeal should be dismissed for delay in it's perfection (serving and filing the extensive final paperwork required before an appeal is scheduled for hearing):
[3] In her detailed endorsement, Gillese J.A. applied the well-known factors a court should consider in deciding whether to set aside a Registrar’s order for failure to perfect an appeal; namely, whether the applicant had an intention to perfect within the time allotted, the length of the delay, any explanation for the delay, any prejudice to the responding party caused by the delay, and the justice of the case.


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Last modified: 02-02-24
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