Court of Appeal for Ontario
Before: Cronk, Pepall and Benotto JJ.A.
Between:
Ella Raitman and Samuel Raitman Plaintiffs (Moving Party)
and
Medallion Development Corporation Defendant (Respondent)
Counsel:
Ella Raitman, acting in person Matthew P. Maurer, for the respondent
Heard: February 19, 2015
On appeal from the order of Justice R.G. Juriansz of the Court of Appeal for Ontario, dated December 15, 2014.
Endorsement
1The moving party, Ella Raitman, seeks an order setting aside the December 15, 2014 order of Juriansz J.A. in which he denied the moving party’s request to extend the time to set aside the September 11, 2014 order of Feldman J.A.
2Feldman J.A. had dismissed the moving party’s motion to extend the time to file a notice of appeal from a November 29, 2013 judgment of Boswell J., in which he dismissed her and Samuel Raitman’s action against the respondent, Medallion Development Corporation (“MDC”). The Raitmans claimed damages for breach of contract arising from an alleged ceiling height deficiency in their home.
3As noted by Gillese J.A. in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 15, the test on a motion to extend time is well settled. The over-arching principle is whether the justice of the case requires that an extension be given. Factors to be considered include:
- whether the moving party formed a bona fide intention to appeal within the relevant time period;
- the length of, and explanation for, the delay in filing;
- any prejudice to the responding party, caused, perpetuated or exacerbated by the delay; and
- the merits of the proposed appeal.
4As stated in the trial judgment (Raitman v. Medallion Development Corporation, 2013 ONSC 7351), the history of the parties’ dispute is as follows. The Raitmans sued MDC for damages for breach of contract. MDC pleaded that it was improperly named, and that Medallion Developments (South Maple) Ltd. (“Medallion”) was the contracting party. At the outset of the trial, the trial judge asked the Raitmans whether they wished to amend their claim to add Medallion as a party. Medallion consented to such an amendment. However, the Raitmans declined to do so.
5The trial judge found as a fact that the Raitmans had contracted with Medallion and not with MDC. Nonetheless, he examined the Raitmans’ claim as if Medallion had been properly named. Having done so, he dismissed their claim.
6The Raitmans then commenced another action naming both MDC and Medallion as parties. It was dismissed on June 4, 2014.
7On July 18, 2014, the moving party brought a motion requesting an extension of time to file a notice of appeal in the original action. Feldman J.A. dismissed this motion on September 11, 2014. She noted problems with prejudice to the respondent and the merits of the case and also determined that the justice of the case favoured dismissing the motion.
8On November 5, 2014, the moving party brought a motion seeking to extend the time to set aside Feldman J.A.’s order. MDC alleged that falsified documents were filed in support of that motion. In the event, the moving party abandoned her motion, with costs of $10,500 payable to MDC on consent.
9On December 1, 2014, the moving party brought another motion for the same relief. This motion was dismissed by Juriansz J.A. on December 15, 2014. He determined that there was no indication that the Raitmans had formed the intention to appeal during the appeal period; a limitation period had expired against the proper defendant; and there was no merit in the proposed review of Feldman J.A.’s order.
10In our view, the moving party’s motion should be dismissed.
11We see no error in either the reasons or conclusion of Juriansz J.A. The moving party failed to meet the requirements of the test for a time extension. The justice of the case did not require the granting of an extension; rather it demanded that it be refused. Furthermore, we note that contrary to the submissions of the moving party, Juriansz J.A.’s decision did not rest on the abandonment of her November 5, 2014 motion nor on her failure to pay outstanding cost orders.
12The motion is dismissed with costs of $2,000, inclusive of disbursements and applicable taxes, to be paid by the moving party to MDC. Approval of the form and content of the draft order by the moving party is dispensed with.
“E.A. Cronk J.A.”
“S.E. Pepall J.A.”
“M.L. Benotto J.A.”