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Appeals - When Appeal Period Commences. Grasshopper Solar Corporation v. Palmer
In Grasshopper Solar Corporation v. Palmer (Ont CA, 2023) the Court of Appeal considered a novel commercial tenancy arrangement whereby the respondent tenant rented residential rooftops for the purpose of generating solar energy and feeding it back into the electrical grid for profit.
In these quotes the court considered a 'time to commence appeal' and a related 'extension of time' issue, here where the lower court first issued a ruling on the summary judgment and then several months later a separate ruling on a damages reference:[11] Prior to considering the appellants’ grounds of appeal against the summary judgment decision, it is necessary to address Grasshopper’s position that the appeal is late and should not be considered. The appellants served their notice of appeal at the end of September 2021 within 30 days of the decision on damages, discussed below. According to Grasshopper, the appellants acknowledge that they appealed from the decision of the motion judge dated March 8, 2021, and therefore were beyond the 30-day time period for serving a notice of appeal set out in r. 61.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[12] We reject this submission. It was appropriate for the appellants to wait until after the damages decision before deciding to appeal the motion judge’s orders both on the summary judgment and damages. Grasshopper also objects to the appellants’ appeal of the damages decision on related timing grounds, which is addressed below.
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[25] As a preliminary matter, Grasshopper raises the issue that the damages decision is time-barred because it was not served within the appropriate deadlines. The appealed-from damages decision was pronounced on August 25, 2021, and its corresponding order was issued on September 27, 2021. The appellants’ notice of appeal specifically appealed the August 25 damages decision. That notice of appeal was served on September 24, 2021, within the 30-day time period. There was no delay here.
[26] The respondent argues that the appellants’ supplementary notice of appeal was late. It was served on November 16, 2021, over a month and a half after a notice of appeal was due on the August 25 damages decision. The supplementary notice of appeal did not add new details concerning the appeal of the damages decision, but it did include a request for an extension of time for the service and filing of the notice of appeal and the supplementary notice of appeal. The respondent takes this request for an extension as evidence that the appeal is late. We do not agree.
[27] There was no question with respect to the appellants intention to appeal within the 30-day timeframe. There was a clear explanation for the supplemental notice of appeal in light of the subsequent September 27, 2021 order by the motion judge, and there no prejudice resulting from the additional period between the original notice of appeal and the supplemental notice. In light of this court’s test for extensions of time, the appellants’ requested extension of time is granted: Paulsson v. University of Illinois, 2010 ONCA 21, at para. 2. . Ramlochan v. Somodi
In Ramlochan v. Somodi (Div Court, 2023) the Divisional Court clarifies that a substantive order is issued when rendered, regardless of whether a cost order is outstanding:[11] The Court of Appeal has held that “a decision on the merits is final for the purpose of appeal when it is rendered, notwithstanding the pendency of the determination of the costs attributable to the case”: Byers v. Pentex Print Master (2003), 2003 CanLII 42272 (ON CA), 62 O.R. (3d) 647, at para. 17 (C.A.). . Buduchnist Credit Union Limited v. 2321197 Ontario Inc.
In Buduchnist Credit Union Limited v. 2321197 Ontario Inc. (Ont CA, 2022) the Court of Appeal considered the time to commence an appeal where the order below requiring clarification before entry (though the court did not apply these principles in this case):[23] I do not accept TC’s submission that its appeal period did not begin until it received clarification of the BCU Execution Entitlement Order on August 3, 2022. I take no issue with the proposition that, where “clarification is required because the judgment is uncertain on an issue”, it is reasonable to treat the date of the clarification as the date from which the appeal period begins to run: Fanshawe College of Applied Arts and Technology v. Hitachi Ltd., 2022 ONCA 144, at paras. 25-26. ... . Fanshawe College of Applied Arts and Technology v. Hitachi
In Fanshawe College of Applied Arts and Technology v. Hitachi (Ont CA, 2022) the Court of Appeal addressed the useful issue of when an appeal period commences:[25] When does the appeal period start to run? In Fontaine v. Canada (Attorney General), 2012 ONCA 206, 289 O.A.C. 190, Watt J.A. stated, at para. 57: “As a general rule, the time period within which a notice of appeal is to be delivered begins to run on the date the order under appeal is pronounced by oral or written reasons”. He added a caveat that where clarification is required because the judgment is uncertain on an issue, “the time runs from entry, not pronouncement”: at para. 59, citing Byers (Litigation Guardian of) v. Pentex Print Master Industries Inc. (2003), 2003 CanLII 42272 (ON CA), 62 O.R. (3d) 647 (C.A.).
[26] An appeal lies from a judgment or order, not from the reasons for it: Ross v. Canada Trust Company, 2021 ONCA 161, 458 D.L.R. (4th) 39, at para. 53. But where the precise import of the reasons is not clear until the judgment is settled, it is reasonable to treat that date as the date from which the appeal period begins to run. Further, in determining whether to quash an appeal on the basis that it is out of time, a panel can consider the factors that inform a decision to extend time: see Gefen v. Gaertner, 2021 ONCA 631, at para. 11.
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