Court of Appeal for Ontario

2022 ONCA 422 DATE: 20220527 DOCKET: M53032 (M52771)

van Rensburg, Harvison Young and Copeland JJ.A.

Parties and Counsel

BETWEEN

Teefy Developments (Bathurst Glen) Limited Plaintiff (Responding Party)

and

Mei Sun also known as Sun Mei Defendant (Moving Party)

Counsel: Paul Robson, for the moving party Ian K. Latimer and Asad Moten, for the responding party

Heard: May 19, 2022

Reasons for Decision

[1] This is a motion under s. 7(5) of the Courts of Justice Act for a panel review of an order of a single judge. The order, made by Nordheimer J.A. on December 6, 2021, [1] refused the moving party, Ms. Sun, an extension of time to appeal a judgment of Lemon J. made after a summary trial. The judgment is dated February 2, 2021, and awarded the responding party, Teefy Developments (Bathurst Glen) Limited (“Teefy”), damages in the sum of $230,928.32 for breach of an agreement to purchase residential property. [2] The extension motion was served on July 23, 2021.

[2] At the outset of the hearing of this review motion, the moving party sought to introduce fresh evidence consisting of her affidavit attaching what appear to be text messages in Mandarin with marginal notes in English. We agree with the responding party that this evidence should not be admitted. Ms. Sun has not provided a satisfactory explanation of why the evidence could not have been put forward at the time of the extension motion. Further, having reviewed the proposed fresh evidence, it would not have affected the outcome of that motion. At its highest, the moving party had thought about, but had not decided to pursue, an appeal. In any event, this evidence would have little bearing on the overall assessment of the justice of the case.

[3] Turning to the review motion, it is dismissed for the following reasons.

[4] The decision of a single judge on a motion to extend time is an exercise of discretion which is entitled to deference on review, absent a demonstrated error in principle or misapprehension of material evidence: Asghar v. Toronto (Police Services Board), 2021 ONCA 338, at para. 6.

[5] The motion judge refused the extension after referring to the test in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636. He was not satisfied that Ms. Sun had formed an intention to appeal within 30 days of the judgment; rather, she had formed her intention to appeal in April 2021. He found that Ms. Sun’s explanation for the delay (that she was waiting to get the file from trial counsel) was not reasonable, as, by April, she had the trial judge’s reasons for at least a couple of months. After examining the grounds of appeal, the motion judge concluded that they had very little merit. Although he recognized that an extension of time would result in no prejudice to the responding party, after considering the factors he concluded that the moving party had failed to satisfy him that there were sufficient reasons to extend time to appeal.

[6] We see no error here.

[7] First, the motion judge adverted to and applied the correct test. He quoted from para. 15 of Enbridge, which states that the overarching principle is whether the justice of the case requires an extension, and lists four relevant considerations, each of which was considered by the motion judge. Although the motion judge did not state his conclusion as one of the “justice of the case”, it is apparent from his reasons that he did not consider the absence of any one particular factor to be determinative, and that he applied the correct test.

[8] Second, the motion judge reasonably concluded that the moving party had not formed an intention to appeal within the prescribed time to appeal. The motion judge reviewed the evidence and concluded that, at the earliest, Ms. Sun had formed an intention to appeal in April 2021, which was more than 30 days after the date of the judgment. We see no error in the motion judge’s conclusion that the time ran from the date of the judgment itself, rather than the date of its entry a month later, after the parties had (on February 17) agreed to an amount for the judgment that was greater than the amount set out in the trial judge’s reasons. Although we did not admit the proposed fresh evidence, its admission would not have altered this conclusion.

[9] Finally, there was no error in the motion judge’s evaluation of the merits of the appeal, and his conclusion that this weighed against an extension of time. Three grounds were argued. The motion judge reasonably concluded that there was no basis at all for the first two grounds – non est factum and lack of independent legal advice – to be advanced in this case, and that the third ground – the trial judge erred in relying on the Agreed Statement of Facts rather than viva voce evidence (of a non-party witness) – reflected no error in the circumstances.

[10] Before us, the moving party emphasized the argument that Mr. Cheng was not Ms. Sun’s agent, but was the agent of the responding party, Teefy. The motion judge dealt with this at para. 15 of his reasons, in rejecting the argument about the Agreed Statement of Facts. The fact that Mr. Cheng was not Teefy’s agent was included in the Agreed Statement of Facts. In any event, the trial judge assessed the evidence and found that, quite apart from the Agreed Statement of Facts, Mr. Cheng was not Teefy’s agent.

[11] For these reasons, the motion to admit fresh evidence is dismissed as is the review motion. Costs are payable by the moving party to the responding party, fixed in the all-inclusive amount of $5,700.

“K. van Rensburg J.A.”

“A. Harvison Young J.A.”

“J. Copeland J.A.”

Footnotes

[1] Reasons reported at Teefy Developments (Bathurst Glen) Limited v. Sun, 2021 ONCA 870.

[2] Reasons reported at Teefy Developments (Bathurst Glen) Limited v. Sun, 2021 ONSC 853.