Jonas v. Elliott, 2020 ONCA 542

Jonas et al. v. Elliott et al.

[Indexed as: Jonas v. Elliott]

Ontario Reports

Court of Appeal for Ontario

Pepall J.A.

August 26, 2020

152 O.R. (3d) 367 | 2020 ONCA 542

Case Summary

Civil procedure — Appeal — Extension of time — Appellants serving notice of appeal in February but not perfecting appeal due to COVID-19 pandemic — Appellants given until August, but not meeting that deadline due to communication problems — Appellants' motion for an extension granted in light of reasonable explanation, no prejudice to respondents, and challenges presented by the pandemic.

The appellants' action against the respondents was dismissed in January 2020 as a result of a summary judgment motion. The notice of appeal was served in February. In March 2020, due to the COVID-19 emergency, limitation and procedural time limits were suspended and the appellants did not perfect their appeal. On July 16, the moving parties received a Notice of Intention to Dismiss Appeal for Delay from the Registrar of the Court of Appeal. The notice provided that the appeal was to be perfected by August 4. Due to communication issues, appellants' counsel sought a short extension from counsel for the respondents, who was unaware of the August deadline. The request for an extension was refused on August 4 at which point it was too late to file the appellants' materials. The appellants moved for an extension of time to perfect their appeal.

Held, the motion should be allowed.

The appellants were granted an extension to September 4. They clearly formed an intention to appeal within the relevant time period; they provided a reasonable explanation for the delay; and its length was justified. There was no prejudice to the respondents other than an absence of finality, and the merits of the appeal were arguable. Given the challenges presented by the COVID-19 pandemic, the justice of the case called for the granting of the extension.

Cases referred to

Mortazavi v. University of Toronto, 2013 ONCA 66; Issasi v. Rosenzweig, 2011 ONCA 112; Duca Community Credit Union Limited v. Giovannoli (2001), 2001 CanLII 24017 (ON CA), 142 O.A.C. 146 (C.A.)

MOTION for an extension of time to perfect an appeal.

James May, for moving parties.

Robert Smith, for responding parties City of Stratford and Carrie Goudy.

PEPALL J. —

1The moving parties move for an extension of time to September 4, 2020 to perfect their appeal. [page368]

2On January 17, 2020, the moving parties' action against the respondents was dismissed as a result of a summary judgment motion.

3The moving parties served their notice of appeal on February 14 and filed it shortly afterwards.

4In March 2020, due to the COVID-19 emergency, limitation and procedural time limits were suspended and the moving parties did not perfect their appeal. On July 16, 2020, the moving parties received a Notice of Intention to Dismiss Appeal for Delay from the Registrar of the Court of Appeal. The Notice provided that the appeal was to be perfected by August 4.

5Due to communication issues arising between co-counsel for the moving parties due to challenges associated with COVID-19, limited cellular capacity and Wi-Fi, on July 28, counsel sought a short extension from counsel for the respondents. This was refused on August 4 at which point it was too late to file the moving parties' materials. (Counsel for the respondents was unaware of the August 4 deadline in the Registrar's Notice.)

6The moving parties wish to challenge the judgment on two bases: the motion judge's failure to consider the action as a whole in granting what they describe as partial summary judgment and in his treatment of foreseeability.

7The moving parties are granted an extension of time to September 4, 2020 to perfect their appeal. They clearly formed an intention to appeal within the relevant time period; they provided a reasonable explanation for the delay; and its length was justified. There is no prejudice to the respondents other than an absence of finality, and the merits of the appeal are arguable. It is not a case where the appeal has so little merit that the court should deny the important right to appeal. See Issasi v. Rosenzweig, 2011 ONCA 112, at para. 10; and Duca Community Credit Union Limited v. Giovannoli (2001), 2001 CanLII 24017 (ON CA), 142 O.A.C. 146 (C.A.), at para. 14.

8Under the circumstances and given the challenges presented by the COVID-19 pandemic, the justice of this case calls for the granting of the requested time extension. See Mortazavi v. University of Toronto, 2013 ONCA 66, at para. 21.

9There was no reasonable basis for the respondents to have opposed this motion. In these circumstances, the respondents shall pay costs to the moving parties in the amount of $1000, inclusive of disbursements and applicable tax.