Court of Appeal for Ontario

Date: 2025-07-24
Docket: COA-25-OM-0237

Before: Peter Lauwers (Motions Judge)

Between:
Paige Power and Darcy Dixon
Plaintiffs (Appellants/Moving Parties)

and

Home Trust Company
Defendant (Respondent/Responding Party)

Appearances:
Paige Power and Darcy Dixon, acting in person
Jeffrey Kukla, for the respondent/responding party

Heard: July 16, 2025

Endorsement

Background

[1] The moving parties, Paige Power and Darcy Dixon, seek an extension of time within which to file their notice of appeal from the decision of McCarthy J. dated April 14, 2025, in which he dismissed the proceeding without leave to amend under rule 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The moving parties filed a notice of appeal an hour or so late, not being aware, as self-represented litigants, that for calculation purposes the court day ends at 4:00 p.m.

The Test for Extension of Time

[2] The test for an extension of time was stated by Gillese J.A. in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15:

The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including
(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;
(b) the length of, and explanation for, the delay in filing;
(c) any prejudice to the responding parties caused, perpetuated or exacerbated by the delay; and
(d) the merits of the proposed appeal.

Application of the Test

[3] I am satisfied that the moving parties formed a bona fide intention to appeal within the relevant time, the delay in filing is very short and has been explained, and there is no prejudice to the responding party.

[4] Not surprisingly, the responding party, Home Trust Company, does not oppose the moving parties’ motion, but only asks that a short time be provided for the notice of appeal to be filed.

Background of the Proceedings

[5] The moving parties spent a considerable time on the merits, making several complaints to which counsel for Home Trust was unable to respond. The moving parties noted that Home Trust has started four different actions against them all arising from the same underlying matter. It also appears that the moving parties have started their own action against Home Trust.

[6] It seems that, at bottom, there is a mortgage action. The property owned by the moving parties is in Barrie. For some reason, Home Trust decided to start a separate application in Hamilton seeking to register a charge, notice of assignment of rents, and certificate of pending litigation on the whole property following the moving parties’ alleged default. This would allow Home Trust to begin enforcement proceedings. The notice of application was not served on the moving parties and there is no affidavit of service in the court file. The Hamilton case was transferred to Barrie and Home Trust again failed to notify the moving parties.

[7] There is some confusion. The moving parties include in their materials the notice of application started by Home Trust in Hamilton bearing court file number CV-25-00089191-0000. Home Trust later provided the court with the statement of claim filed by the moving parties in Barrie with court file number CV-24-00003013-0000. McCarthy J.’s endorsement matches closer to the court file number of the moving parties’ action and bears the number, written by hand, CV-24-3013-00.

[8] Home Trust relied on the order transferring the case from Hamilton to Barrie to move to dismiss the case in Barrie, leading the motion judge to issue perfunctory reasons that did not show a complete understanding of the matters in issue. That is not surprising; I am in the same position.

[9] As is regrettably often the case with self-represented litigants, the picture they present is confused. Regrettably, in these circumstances counsel for Home Trust was not able to shed much light on the number of actions or applications pending or their status beyond saying that none had yet proceeded to judgment.

Duties to Self-Represented Litigants

[10] Counsel and the court have certain duties to self-represented litigants. It appears that none of them were met in this case: Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at paras. 149-152. See also Grand River Conservation Authority v. Ramdas, 2021 ONCA 815, 160 O.R. (3d) 348, at paras. 18-23. These duties apply here with necessary modifications.

Orders

[11] I therefore require Home Trust to provide the court and the moving parties with an explanatory statement setting out the actions and applications pending between the parties, and their current status, including whether the pleadings have been served and the state of the pleadings in each.

[12] I extend the time within which the moving parties may file a notice of appeal and require the moving parties to file a notice of appeal within 30 days of receiving Home Trust’s explanatory statement.

“P. Lauwers J.A.”