Case: Gefen v. Gaertner, 2021 ONCA 631 (CanLII)

Keywords: civil procedure; appeals; timing

Synopsis:

A Trial Judge releases “reasons for decision” on October 17, 2019. The parties do not agree on the form of judgment. Following a case conference, the Trial Judge releases an endorsement giving reasons for settling the form of judgment. The “judgment” itself is not signed until October 16, 2020. (See paras. 3-5).

On October 20, 2020, the Responding Party, Henia Gefen, serves notice of appeal. The Moving Party brings a motion to quash, submitting the appeal is “out of time”. (See paras. 2; 6). The motion to quash is dismissed, with costs. The Court of Appeal determines the clock begins to run on October 16, 2020. (See paras. 10, 12).

Importance:

When does the clock start to run on an appeal? For the Court of Appeal herein, not until the judgment is “finally settled, and issued”. (See para. 10). In arriving at this conclusion, the Court of Appeal provides an excellent summary of applicable propositions of law.

The Court of Appeal observes that an appeal is from the “judgment”, not from the reasons. (See Ross v. Canada Trust Company, 2021 ONCA 161 at para. 53).

At the same time, the Court of Appeal acknowledges a “general rule” that the time for an appeal “runs from the date of the release of the reasons, not from the date that the judgment is finally settled and issued”. (See paras. 7-8; Fontaine v. Canada (Attorney General), 2012 ONCA 206).

Importantly, the Court found this “general rule” can be displaced in certain scenarios, including:

  • where the judgment provides otherwise;
  • where the judgment is uncertain on a point; or
  • where something of substance has been missed. (See para. 8).

In these scenarios, the clock runs from the “date of entry of the judgment” rather than the date of “pronouncement”. (See para. 8; see also Fontaine at paras. 59-60; Byers (Litigation Guardian of) v. Pentex Print Master Industries Inc. (2003), 2003 CanLII 42272 (ON CA) at paras. 31, 33, 34, 36, 43).

In this case, the Court of Appeal finds that the content of the “judgment” was not finally settled and issued before October 16, 2020. As a consequence, the Court finds that Henia Gefen could not have been aware of the content of the judgment before that date:

It is reasonable, in our view, to treat October 16, 2020 as the date on which time to appeal began to run and it is not, therefore, out of time. (See para. 10).

As a consequence, the motion to quash is dismissed. (See para. 12). This case serves as an important reminder that, where litigants dispute the form of judgment, any resulting delays in ‘finally settling and issuing’ judgment may actually extend the period in which a notice of appeal can be served.

Counsel for the Moving Party: Christopher Graham (Graham Estate Law, Toronto)

Counsel for the Responding Party, Henia Gefen in her personal capacity as as estate trustee of the estate of Elias Gefen: Ronald Moldaver, Q.C. (Moldaver Barristers, Toronto)

Counsel for the Responding Party, Harry Gefen: Devin McMurtry (Tupman & Bloom LLP, Toronto)

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