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Appeals - Time Extension - General. Khatir v. Desjardins
In Khatir v. Desjardins (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a motion to extend time to commence an appeal:[3] A Court may extend the time to appeal where it is in the interests of justice to do so based on relevant considerations including:(i) An intention to appeal within the appeal period;
(ii) The length of the delay in appealing and whether that delay is persuasively explained;
(iii) The degree of prejudice to the responding party; and
(iv) The merits of the proposed appeal.
(Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15; Liu v. Chan, 2024 ONCA 699, at para. 16; Home Trust Company v. Pitters, 2025 ONCA 818, para 2.) [4] These factors are not hurdles, each of which must be cleared for the Appellant to succeed; rather, they are each to be weighed in their totality. The essential question is whether the justice of the case requires time to be extended.
Factor 1) An intention to appeal within the appeal period
[5] I accept that the Appellant had an intention to Appeal. The self represented Appellant filed a Notice of Appeal on 14 February 2025. He says, as well, that his age and catastrophic medical condition arising from the automobile accident contributed to his lack of understanding of procedures and his ability to navigate them. Ultimately, he retained counsel in May 2025, following which things moved, which was rejected.
Factor 2) The length of the delay in appealing and whether that delay is persuasively explained
[6] The delay in bringing this motion is just under five months.
[7] The Appellant explained the delay by saying, “I did not have legal representation and attempted to pursue the appeal process to the best of my limited understanding. My advanced age, medical condition, and lack of legal knowledge contributed to a misunderstanding and misapplication of the appropriate procedures”. This is a bald statement. He does not explain the nature of his claimed impairments and how they impaired his ability to file his Notice of Appeal, or to retain counsel for the appeal. He attaches no medical substantiation for his position.
Factor 3) The degree of prejudice to the Respondent
[8] There is no prejudice to the Respondent insurer which advances no argument about prejudice in proceeding with the Appeal.
Factor 4) The merits of the proposed Appeal
[9] The merit of a proposed appeal however is the most important of the factors to weigh, and in the appropriate circumstances, lack of merit alone can be sufficient to dismiss a motion to extend time (Enbridge Gas Distribution v. Froese, 2013 ONCA 131 at para. 16, Liu v. Chan, 2024 ONCA 699 at para. 29, Beard Winter LLP v. Shekhdar, 2016 ONCA 493, at paras 15 and 16).
[10] The Court of Appeal said in Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, par. 21:T]here are occasions when the lack of merit in an appeal is so clear-cut that, on its own or in combination with a consideration of other factors, a motion judge determines that leave should not be granted … Courts must be mindful of the cost of litigation and unnecessary expenditures of time but all the while preserving the need to ensure that the dictates of justice of the case are met. [11] In Liu v. Chan, 2024 ONCA 699, at para. 33, the Court of Appeal declined to grant an extension of time to file a Notice of Appeal on the basis that the Notice of Appeal did not identify any legal errors with respect to the trier of fact and instead, the would-be appellant sought to re-argue factual matters decided against him.
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Weighing the Factors
[18] The intention of the Appellant and the absence of prejudice weigh in favour of extending time to commence the Appeal. The timeliness of the Motion is neutral. The Appellant’s bald statements as to why waited five months to bring his Motion to extend time weigh heavily against granting leave. The strongest factor weighing against granting leave to extend time to appeal is the weak merits of the Appeal.
[19] Motion is dismissed. . Rahimi v. Lafonte
In Rahimi v. Lafonte (Ont Div Ct, 2026) the Ontario Divisional Court quashed an LTB appeal. These extracts illustrate the potentially broad use of the R2.1.01 "frivolous or vexatious or otherwise an abuse of the process of the court" provision, here including use against basic procedural flaws such as:- "an appeal where the rules clearly provide that leave to appeal is required",
- the appeal required that the appellant "must bring a motion for an extension of time".
The court states:[6] Rule 2.1.01 allows for the determination of whether the action is frivolous or vexatious at the very outset of the action. The process is in writing without an evidentiary record. It is aimed at clear cases. The process is not for “close calls”. The action is to be dismissed pursuant to Rule 2.1.01 only if the frivolous, vexatious, or abusive nature of the proceeding is apparent on the face of the pleading: Scaduto v. LSUC, 2015 ONCA 733, at para. 8.
[7] Although proceedings which are clearly frivolous or vexatious on their face should not be permitted to proceed, care must be taken to ensure that a claim which includes a legitimate complaint is not summarily dismissed. As noted in Gao v. Ontario WSIB and Ontario Ombudsman, 2014 ONSC 6497, at para. 18:While rule 2.1 should be applied robustly to bring an early end to vexatious proceedings, the matters should not [be] considered lightly or dismissively. Care should be taken to allow generously for drafting deficiencies and recognizing that there may be a core complaint which is quite properly recognized as legitimate even if the proceeding itself is frivolously brought or carried out and ought to be dismissed. [8] The Court’s “task in deciding a motion brought pursuant to R. 2.1.01 is to look beyond drafting deficiencies to determine the nature of the Plaintiff’s complaint and whether that complaint is frivolous, vexatious or an abuse of process”: Mohammad v. McMaster University, 2021 ONSC 3494.
[9] The issue in the present case is not whether the appeal lacks merit, it is whether the Appellants may circumvent the rules of procedure and bring an appeal where the rules clearly provide that leave to appeal is required and that the appellants must bring a motion for an extension of time. The abuse of process in this case is an abuse of the procedural requirements.
[10] Section 133(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that leave to appeal is required from a consent order. Section 133(a) states:133 No appeal lies without leave of the court to which the appeal is to be taken,
(a) from an order made with the consent of the parties; [11] In Lou v. Abagi, 2018 ONSC 1587, the parties entered into a settlement agreement that was incorporated into a consent order requiring the tenant to vacate his rental unit. The tenant then sought to appeal the order. Peterson J. held that no consent order from the LTB may be appealed without leave of the Court:Section 133 of the Courts of Justice Act stipulates that no appeal lies from a consent order without leave of the court. The LTB termination order that is the subject of this appeal was made on consent of the parties, yet no leave has been obtained (or sought) by Mr. Abagi to bring the appeal. [12] Peterson J. declined to adjourn the proceedings to permit the appellant to bring a motion for leave to appeal and quashed the appeal for failure to seek leave, and because it was “manifestly devoid of merit” and constituted an abuse of process.
[13] Similarly, in Arnold v. Lulu Holdings Inc., 2021 ONSC 8125, Matheson J. was confronted with a case in which the consent itself was challenged or disputed. She concluded that leave to appeal was required, at paras. 34 – 37:This appeal should also be quashed because no leave to appeal has been sought or granted.
Section 133 of the Courts of Justice Act provides that no appeal lies, without leave, from an order made with the consent of the parties. The appellant submits that leave is not required in this case because the consent is disputed on the appeal.
The appellant relies on Ruffudeen-Coutts v. Coutts, 2012 ONCA 65, however, that case does not hold that leave is not required when the consent is challenged. It does provide a test for the granting of leave from a consent order where the consent is challenged.
On its face, the LTB order is a consent order. This is further confirmed by the recording of the hearing. The majority of the court in Ruffudeen-Coutts held that “where the issue relates to the validity of the consent, leave to appeal should not be granted unless the evidence before the court on the leave application demonstrates that there is an arguable case that, at the time the agreement that formed the basis of the consent order was entered into, the moving party could not or did not consent”: at para. 64 (per Epstein J.). Further, the adjudicator’s determination should attract deference and the threshold for granting leave is high: at paras. 69 and 72 (per Epstein J.). The court did not hold that leave to appeal was not required. See also: Morgan v. Whing, 2009 CarswellOnt 2927 (Div. Ct.), at para. 7, Eldebron Holdings Limited v. Mason, 2016 ONSC 2544, at para. 14; Singh v. Mylvaganam, 2018 ONSC 5955, at para. 2; Faulknor v. Li, 2025 ONSC 4415, at para. 7.
[14] In this regard, the decision of the Divisional Court in Trust Construction Corporation v. McKie, 2017 ONSC 4702, at para. 6 is germane:It is also a matter of concern that parties ought not to be easily able to revisit orders that have been made on consent. The effective resolution of matters that come before the Board will be greatly impaired if parties can continually seek to revisit issues that they have earlier agreed to resolve. [15] As Arnold makes clear, leave to appeal a consent order is required even if the consent itself is challenged or disputed. . Henderson v. Wang [purpose]
In Henderson v. Wang (Ont CA, 2025) the Ontario Court of Appeal considered one purpose of an order to extend time to appeal:[12] A moving party’s long history of procedural misconduct and the resulting prejudice to the responding party may support the dismissal of an extension motion as sometimes such an order is the only order that “can adequately protect the integrity of the civil justice process and prevent an adjudication on the merits that is unfair” to a responding party: 828343 Ontario Inc. v. Demshe Forge Inc., 2022 ONCA 412, at paras. 35-37. This is particularly true in estate matters which are expected to be administered promptly and efficiently. . Canadian Pacific Railway Company v. Teamsters Canada Rail Conference
In Canadian Pacific Railway Company v. Teamsters Canada Rail Conference (Div Court, 2023) the Divisional Court considers a late delivery of a CJA s.21(5) panel set aside of a motion [R61.16(6) requires it to be filed "within four (4) days of the order being made", it was done in 14 days]:[8] CP seeks an extension in time and to have its motion heard. CP submits that it erroneously believed it had 15 days to serve its motion and that a ten-day delay causes no prejudice to Teamsters Canada. CP filed an affidavit in support of its motion to extend time stating that counsel to CP obtained instructions to proceed with an appeal on February 16, 2023, three days after the decision of the motion judge. At that time, counsel believed that this was a final decision, which would be appealed to the Court of Appeal with leave, in which case CP would have had 15 days to file its notice of motion for leave to appeal. He gave instructions regarding preparation of materials based on that belief. Counsel discovered the error on February 23, 2023 and by February 27, 2023 CP had filed the motion materials in this court.
[9] Teamsters Canada submits that the failure to file this motion on time is part of CP’s pattern of failing to meet timelines or adequately attend to the rules of this court. In the absence of a compelling explanation, Teamsters Canada submits that the extension should be denied, and the motion dismissed at the outset.
[10] A decision to extend time for late filing is an exercise of discretion. It should be informed by the reasons for the delay, any prejudice to a party, the merits of the motion and whether the moving party formed an intention to move to vary the order. In this case, there is a reasonable explanation for the delay, the time of delay is short and there is no evidence of prejudice to the responding party.
[11] I conclude that the court should exercise its discretion to hear the motion.
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