Case: Correct Building Corporation v. Lehman, 2022 ONCA 723 (CanLII)
Keywords: extension of time to perfect appeal; Rule 61.16(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43
The Court of Appeal 3-judge panel quotes the Court of Appeal motion judge as to the matter at hand: “the underlying dispute concerns the development of the Allandale Station lands in Barrie and the [Moving Party’s] allegation that certain archaeological and environmental reports in the possession of the City should have been disclosed to the [Moving Party].” (See para. 4). This after Ricchetti R.S.J. of the Superior Court of Justice had granted the (Defendants’) Moving Parties’ summary judgment motions in related actions against the City of Barrie and individual Respondents; the Appellant (Plaintiff) sought a 90-day extension to perfect the appeals.
The motion judge, Sossin J.A., had granted the extension with respect to the City of Barrie, but denied the extension in respect of the individual Respondents.
The Moving Party now moves under Rule 61.16(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 before a panel of the Court of Appeal to review the decision denying the extension.
The Court of Appeal (Feldman, Hoy, and Lauwers JJ.A.) finds two reviewable errors, sets aside the motion judge’s decision, and grant the Moving Party’s request for an extension of time.
This case provides an important illustration of a panel review under s. 7(5) of the Courts of Justice Act. The Court of Appeal outlined the following key principles to consider in this context:
- A panel review is not a de novo (See Machado v. Ontario Hockey Association, 2019 ONCA 210, at para. 9).
- The discretionary decisions of a motion judge are entitled to deference.
- A panel may intervene where there has been an error in principle, an unreasonable result, or the decision reflects legal error or a misapprehension of material evidence. (See Hillmount Capital Inc. v. Pizale, 2021 ONCA 364 at para. 18; Iqbal v. Mansoor, 2022 ONCA 198, at para. 2).
Further, this case provides an important discussion from the Court of Appeal on the test for granting an extension of time to perfect an appeal. First, the Court observed that the test articulated in Sheth v. Randhawa, 2022 ONCA 89 applies here (even though that case concerned the test for granting an extension of time to appeal rather than an extension to perfect an appeal):
The ultimate question is whether the justice of the case warrants the order requested. Factors to be considered in making the decision are: (i) whether the appellant formed an intention to appeal within the appeal period; (ii) the length of the delay; (iii) the explanation for the delay; (iv) the merits of the proposed appeal; and (v) prejudice to the responding parties. (See para. 9, quoting Sheth v. Randhawa, 2022 ONCA 89 at para. 15).
The Court determined the key question before the motion judge was whether there was some potential merit to the Moving Party’s appeal and whether justice required that the extension be granted. (See para. 10).
With respect to the merits factor, the Court stated that its ‘traditional’ purpose is to “support granting an extension when the other factors do not favour the applicant, but because there may be some potential merit to the case, it is still in the interests of justice that the applicant’s right of appeal not be removed, just because of lateness.” (See para. 11; see also Howard v. Martin, 2014 ONCA 309 at para. 36; Derakhshan v. Narula, 2018 ONCA 658 at para. 22; and 40 Park Lane Circle v. Aiello, 2019 ONCA 451 at para. 8).
Whereas Sossin J.A. relied on the 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5 decision, which provides a basis to deny an extension where there is no “scintilla suggestion that the appeal has merit”, the Court of Appeal panel distinguished that decision. (See paras. 8 & 12; Pet Valu at para. 7). For the Court Pet Valu is “an unusual case” – unusual in the sense that the motion judge in Pet Valu relied upon an absence of any merit to deny the extension. (See para. 12).
In this case the Court determined the record disclosed “significant evidence of failure by staff to disclose” and that, controversially, the Superior Court of Justice had made a finding that non-disclosure could not amount to bad faith, which “could amount to a question of law on appeal”. (See paras. 13-14).
The Court therefore determined that the motion judge erred by failing to apply the following principle from 40 Park Lane:
…even where it is difficult to see the merits of the proposed appeal, a party should not be deprived of their right of appeal when there is no real prejudice to the other side. (See para. 15).
Taking all the factors together, the Court determined the justice of the case required that the Moving Party be granted its extension to appeal against the individual Respondents, not just the City of Barrie. (See para. 16).
Counsel for the Moving Party: Colin Stevenson (Stevenson Whelton Barristers, Toronto)
Counsel for the Responding Parties: Albert Formosa and Caitlin Steven (WeirFoulds LLP, Toronto)