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Appeals - Notice of Appeal. Safieh v. Hamza
In Safieh v. Hamza (Ont CA, 2025) the Ontario Court of Appeal grants the set aside of a Registrar's administrative dismissal of an appeal, thus reinstating it [under 61.16(5) 'Review of Registrar’s Order']:[2] On June 9, 2025, Mr. Safieh’s appeal was administratively dismissed for delay by the Registrar, pursuant to r. 61.13(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, after he missed an extended perfection deadline agreed to by the parties.
[3] Mr. Safieh now moves pursuant to r. 61.16(5) for an order setting aside the Registrar’s order and reinstating the appeal, and for an order pursuant to r. 3.02(1) for an extension of time to perfect his appeal (M56061). Ms. Hamza opposes the motion, and, in the alternative, brings a cross-motion for the imposition of conditions required to address the risk that Mr. Safieh will use the delay before the hearing of the appeal to dissipate assets needed to satisfy the orders under appeal (M56089). The motion and cross-motion before me should be granted if the justice of the case requires it. For the reasons that follow, I am granting both the motion and the cross-motion, on terms identified below.
[4] With respect to Mr. Safieh’s motion pursuant to r. 61.16(5) to set aside the order administratively dismissing his appeal, the merits of the appeal is one of the primary considerations: Sickinger v. Sickinger, 2017 ONCA 760, at para. 13. Consideration must also be given to: (1) the explanation for not perfecting the appeal within the stipulated timelines; (2) the length of and explanation for the delay; and (3) prejudice to the responding party: Hoffelner v. Whiteley, 2024 ONCA 753, at para. 10. The inquiry into the merits of the appeal cannot be exacting at this stage in the litigation given the incomplete record available and the consequence of denying the motion, which is the loss of the right to even argue the appeal. As Gillese J.A. stated in Jewish Foundation of Greater Toronto (Re), 2022 ONCA 581, 1 C.B.R. (7th) 1, at para. 28: “I need only determine whether the Appeal has so little merit that the court could reasonably deny the important right of an appeal”.
[5] The considerations I have just described for setting aside an administrative dismissal are much the same considerations that apply to Mr. Safieh’s motion for an extension of time to perfect pursuant to r. 3.02(1), although the standard for setting aside an administrative dismissal is more demanding since such orders can be avoided by moving for extensions of time: Langer v. Yorktown Securities Inc. et al. (1986), 1986 CanLII 2612 (ON CA), 57 O.R. (2d) 555 (C.A.), at p. 558; Sickinger, at para. 14; Guillaume v. Ontario (Animal Care Review Board), 2024 ONCA 851, at para. 11. In considering a motion for an extension of time, an appellate court will also ordinarily consider whether the appellant formed an intention to appeal within the appeal period and maintained an intention to pursue the appeal: Guillaume, at para. 10. When orders affect the interests of children, as they do here, an important if not overarching consideration is the effect of the orders on the best interests of the children: D.G. v. A.F., 2014 ONCA 436, at paras. 12, 33.
[6] I am persuaded that, subject to the imposition of conditions, which I address below, the justice of the case warrants granting the order Mr. Safieh seeks and that it is in the interests of the children to grant these orders. . Salih v. Lacroix [important]
In Salih v. Lacroix (Div Court, 2023) the Divisional Court considered RCP 61.08(2) which provides that only issues raised in the notice of appeal may be argued, barring permission of the court:[4] Last week, the Landlord notified the Tenants that he was seeking to put forward a new argument. The Tenants objected, relying on the provisions of Rule 61.08(2) of the Rules of Civil Procedure, which state that “no grounds other than those stated in the notice of appeal ... may be relied on at the hearing, except with leave of the court hearing the appeal”. They also argued that we should not grant leave in this instance, as the Board was entitled to appear on this appeal and chose not to do so after having reviewed the material file by the Landlord. The Board might have made a different decision if it had been given notice of the new ground raised.
[5] We agree with the Tenants that leave to argue the new ground should not be granted. First, the Board never had the opportunity to consider or address this ground at first instance. Second, it has also been denied the opportunity to address the ground on appeal. It is no answer to say that the way to remedy this problem is to adjourn the appeal. . T.O. Estate v. D.O.
In T.O. Estate v. D.O. (Ont CA, 2023) the Court of Appeal set out a test for amending a Notice of Appeal, here after perfection:The Test to Amend
[7] The factors germane to whether leave to amend a notice of appeal should be granted after an appeal has been perfected were set out by Cronk J.A. in Yar v. Yar (2012), 24 R.F.L. (7th) 101 (Ont. C.A.), at paras. 14-15. They are: (1) whether the appellant formed an intention to appeal within the relevant time period; (2) the length of and any explanation for the delay; (3) any prejudice to the respondent; (4) the merits of the appeal; and (5) the justice of the case. . Manafa v. Tannous
In Manafa v. Tannous (Div Court, 2023) the Divisional Court considered what can be characterized as the 'appeal pleadings', that is the "(a) the relief sought;" and the "(b) the grounds of appeal" as required in the Notice of Appeal [by R61.04(3)]:[31] In oral argument, I pressed the Appellant to direct me to where she had specifically identified these issues as being included in her Notice of Appeal. The Appellant was only able to point to the following paragraph from her Notice of Appeal as identifying that these issues (which were her counterclaim) were also being appealed:4. That this Honourable Court grant the Appellant all the remedies she is entitled to under the Consumer Protection Act and common law. [32] Rule 61.04(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 states that the Notice of Appeal shall set out the relief sought and the grounds of appeal. Rules 61.08(2) and (3) state that both the argument advanced on appeal and the relief that an appellate court may grant are limited to what is set out in the Notice of Appeal. It is possible that a defect in the Notice of Appeal may prevent a party from arguing a specific issue on appeal. See Markowski v. Verhey 2020 ONCA 472 at paras 20-25.
[33] In this case, given the lack of notice in respect of the Respondent’s claim in the Notice of Appeal, there are real concerns as to whether it would be prejudicial to require the Respondent to address the issues arising from the Defendant’s claim in this appeal and real concerns about whether those questions are properly before me in any event. However, it is not necessary for me to decide this question.
[34] Assuming, without deciding, that these issues are properly before the Court, I conclude that there is no basis to interfere with the Deputy Judge’s decision on these issues either. His conclusions are findings of fact, and as a result are only open to challenge if he made a palpable and overriding error. He did not do so.
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