The test for an extension of time to serve and file a late Notice of Appeal in Ontario is well-established in the case law:
1) whether the moving party formed a bona fide intention to appeal during the time permitted for an appeal;
2) the length of the delay and the explanation for the delay;
3) the merits of the proposed appeal; and
4) any prejudice to the responding party.
The overarching consideration in this respect, however, is the interests of justice. The September 26, 2014 decision of Weiler J.A. of the Ontario Court of Appeal in Leighton v. Best is an excellent illustration of these principles, also demonstrating that there are still costs to being granted an indulgence – in this case, the successful appellant being ordered to pay the costs of the unsuccessful respondent.
Some time after Leighton obtained a judgment against Best in a personal injury lawsuit which was being satisfied pursuant to garnishment, Best declared bankruptcy. Leighton then commenced an application for a declaration that the damages still owing to him would survive bankruptcy. Leighton was unsuccessful. Seven weeks after his application was dismissed, the Court of Appeal released a new decision, reversing a ruling from a case that the application judge had relied upon. The facts thereafter are best described by Weiler J.A.:
[7] Leighton's affidavit filed in support of this motion is to the effect that on October 31, 2013, his counsel...brought the Court of Appeal's decision to his attention and he instructed her to appeal. On the same day, she wrote to the motion judge, copying Best's counsel, and asked him to reconsider his decision as the order dismissing the motion had not yet been issued and entered. The motion judge refused to do so on November 19, 2013. That same day, Leighton's counsel asked Best's counsel to consent to the late filing of the notice of appeal. On December 23, 2013, Best refused.
[8] This notice of motion requesting an extension of time was not brought until June 16, 2014. On August 12, 2014, the motion was adjourned to permit Leighton to file further and better material in support of the motion and counsel for Best was given the opportunity to cross-examine if he so desired. No cross-examinations have occurred.
Emphasizing the overall justice of the case, Weiler J.A. granted the motion for an extension of time despite the lengthy delay in bringing the motion and the possibility of some prejudice to the respondent. She nonetheless held that Leighton should pay Best's costs of the motion:
[9] Leighton concedes he did not intend to appeal within the prescribed time period. However, when Leighton heard of the Court of Appeal's decision in Dickerson from his lawyer about two weeks after the appeal period had expired, he acted promptly and instructed his lawyer to appeal. In Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401, a delay of 15 months in forming an intention to appeal was accepted on the basis that prior to the release of the Supreme Court of Canada's decision in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, conflicting appellate authority on causation made success on appeal very uncertain. In this case, success on appeal appeared to be unlikely until the Dickerson decision was reversed. The delay respecting intention to appeal is short.
[10] Insofar as the length of the delay in seeking an extension of time to appeal and an explanation for the delay are concerned, Leighton simply says that he "left the matter in the hands of his lawyer to take whatever steps [were] necessary."
[11] Leighton's lawyer has sworn an affidavit that addresses her delay in waiting until June 2014 to bring this motion. She advises that in the summer of 2013, her husband suffered "from a serious health problem that required a brief period of hospitalization and regular and ongoing treatment." She states that managing all the household responsibilities, raising her children and concern for her husband's health took an emotional and physical toll on her. Yet she did not take a leave of absence from work. She states, however, "I was in the office less frequently between the fall of 2013 to the present and was distracted by my situation at home which caused me to be less vigilant following up with matters in the workplace."
[12] Best's counsel submits that Leighton's counsel is not a sole practitioner and could have assigned the file to someone else in her office because it was time sensitive.
[13] The steps Leighton's counsel took until December 23, 2013, are a satisfactory explanation for the delay until that date. I am not satisfied with the explanation for the delay for the first six months of this year. [She] was actively engaged on the file for some six months after her husband's illness and, if the cumulative effect of her responsibilities was overwhelming, I agree that she ought to have transferred the file within the office.
[14] The failure of Leighton's counsel to provide a satisfactory explanation for the delay is not necessarily fatal in itself, however, because in deciding whether the overall justice of the case requires that leave be granted, consideration must be given to all of the factors. In Howard, Gillese J.A. commented, at para. 36, "The merits of a proposed appeal can be decisive on a motion to extend the time for filing. Even if the other factors militate against extending time, the merits may be so significant as to justify extending time." [emphasis added]
[15] In this case, the motion judge stated, at para. 20 of his reasons, "I find the Dickerson case and the present case to be similar in important aspects.... In both, the punches were intentional". The merits of appeal are strong.
[16] Best submits that he suffers prejudice by being deprived of a timely discharge from bankruptcy. He states, "The fundamental policy of the bankruptcy regime is to relieve a debtor of an insupportable burden of debt and allow [him] to return to a productive economic life." Best's prescribed period of bankruptcy was 21 months. It has now reached 36 months and will continue if the motion is allowed. The incident giving rise to the civil judgment took place more than 10 years ago and Best submits he should be permitted to move forward with his life.
[17] Leighton submits that Best is not prejudiced by the delay because he has known since shortly after the Court of Appeal's decision reversing Dickerson that Leighton was seeking to have the motion judge's decision reconsidered or appealed. The parties had their day in court. Enforcement of Leighton's judgment, which he submits is in accordance with the policy in s. 178(1)(1.a)(i) of the Bankruptcy and Insolvency Act, should not be thwarted because the legal landscape changed only after the appeal period had expired and the total delay here is about the same as in Resurfice.
[18] I agree that the prejudice to Best from being unable to obtain an earlier complete discharge should not prevent an extension from being granted. Overall, I am of the opinion that it is in the interest of justice to extend the time to file a notice of appeal. The motion is allowed. Leighton shall have five days from the release of these reasons to file a notice of appeal.
[19] Although Leighton has been successful on this motion, he has received an indulgence from the court. Consequently, Leighton is ordered to pay costs to Best fixed in the amount of $1500 inclusive of all disbursements and applicable taxes.
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