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Appeals - Time Extension for Leave to Appeal

The test for extending time with a motion for leave to appeal appears to be pretty much the same as that for extending time on a normal (non-leave) appeal.

. 828343 Ontario Inc. v. Demshe Forge Inc.

In 828343 Ontario Inc. v. Demshe Forge Inc. (Ont CA, 2022) the Court of Appeal discerns different types of 'delay' within the extension of time test, here with respect to a leave to appeal motion:
[21] The test on a motion to extend time is well-settled: see, for example, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. The overarching principle is whether the “justice of the case” requires that an extension be given. While each case depends on its own circumstances, in deciding whether the justice of the case warrants the extension of time, the court is to take into account all relevant considerations (the “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.
....

[32] On the issue of merit, this court’s decision in Ticchiarelli v. Ticchiarelli, 2017 ONCA 1 – relied on by the Divisional Court – is a full answer. The motion judge fell afoul of the dictates in Ticchiarelli because he blended the concepts of inordinate delay and excusable delay when concluding that the nine-year delay between the commencement of the action and the motion to dismiss for delay was not inordinate. After the Divisional Court identified the motion judge’s error, it fell to that court to properly apply the principles in Ticchiarelli. This also disposes of the submission that the Divisional Court substituted its own findings on excusability for those of the motion judge without a finding of a palpable and overriding error. The motion judge’s error was not a factual finding, subject to the palpable and overriding error standard. The error related to a principle of law and was reviewable on a correctness standard.
. Carleton Condominium No. 28 v. Bassi Construction Ltd.

In Carleton Condominium No. 28 v. Bassi Construction Ltd. (Div Ct, 2022) the Divisional Court considered extending the time to file a leave to appeal motion:
[3] The test on a motion to extend time to bring a motion for leave to appeal is well-settled, and was stated by Gillese J.A. in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 at para. 15:
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 any 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.
....

[9] In considering the issue of prejudice, the relevant consideration is not prejudice resulting from the progress of the actual appeal or motion for leave to appeal, but rather the prejudice that would be caused from the delay in filing the notice of appeal or motion for leave to appeal: 40 Park Lane Circle v. Aiello, 2019 ONCA 451 at para. 6.

....

[14] In the context of a motion to extend time to seek leave to appeal, a court should only engage in a limited analysis of the merits of the proposed appeal. This Court has described the threshold as being “satisfied that the appeal has some merit”: Alaycheh v. Alaycheh, 2020 ONSC 6006 (Div. Ct.) at paras. 29, 33, 34.

....

[17] In this case, the moving party relies on the second branch of the test for leave. Under the second branch of the test for leave to appeal, the assessment of correctness by the leave panel does not involve deciding if the decision from which leave was sought was wrong; rather, the panel need only consider whether the correctness of the decision is open to very serious debate. The leave panel must also consider if the proposed appeal raises issues of general importance: Samuels v. Canada (Attorney General), 2016 ONSC 6706 (Div. Ct.) at para. 23; Ash v. Lloyd’s Corp, 1992 CanLII 7652 (Gen. Div.).
. 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.
. 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.
. 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.


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