Court of Appeal for Ontario

Date: 2025-09-09

Docket: M55953 (COA-24-CV-0563)

Panel: Sossin, Favreau and Wilson JJ.A.

Between

Twisha Talpade and Vineet Talpade Applicants (Appellants/Moving Parties)

and

AMJ Campbell Company Toronto East and James Yaeck Respondents (Respondents/Responding Parties)

Counsel

Vineet Talpade, acting in person

No one appearing for the moving party, Twisha Talpade

Jonathan De Biasi, for the responding parties

Heard: August 27, 2025

On review of the order of Justice Jill M. Copeland of the Court of Appeal for Ontario, dated April 22, 2025.

Reasons for Decision

Procedural History

[1] This motion arises in the context of an appeal of a decision by de Sa J. dismissing a motion for an interlocutory injunction against the responding parties in relation to a dispute over unpaid storage costs between the moving parties and the responding parties: 2024 ONSC 2641. The moving parties unsuccessfully sought to restrain the responding parties from selling the stored property under the Repair and Storage Liens Act, R.S.O. 1990, c. R.25 (RSLA). The moving parties appealed.

[2] On July 29, 2024, the moving parties filed a motion for an extension of time to perfect their appeal, as well as a stay of de Sa J.'s decision. Pepall J.A. granted the extension, but for thirty days rather than the three months requested by the moving parties. The motion for a stay was dismissed based on the responding parties' representation that they would preserve the property while the appeal was pending.

[3] On September 30, 2024, the moving parties filed another notice of motion, requesting a panel review of Pepall J.A.'s decision and also requesting an extension of time to bring the panel review motion. The court advised the moving parties that this motion was improper, as the extension of time motion had to be brought in advance of the panel review.

[4] Ultimately, the appeal was dismissed for delay by the Registrar in November 2024. On November 29, 2024, the responding party AMJ Campbell Inc. served a notice of intention to auction the appellants' stored property pursuant to s. 15(1) of the RSLA.

[5] The moving parties subsequently filed another motion, seeking to set aside the Registrar's dismissal order, requesting an extension of time to file a motion to review Pepall J.A.'s order, requesting an extension of time to perfect their underlying appeal, and requesting a stay of the auction pending the appeal.

[6] On December 30, 2024, Coroza J.A. dismissed the moving parties' motion to set aside the Registrar's dismissal order. Because this decision terminated the appeal, all other relief requested was also denied.

[7] The moving parties sought a panel review of the decision of Coroza J.A., but did not file their materials within the time required.

[8] They next brought a motion seeking an extension of time to perfect their materials for the panel review of Coroza J.A.'s decision.

[9] The motion judge declined to grant the extension of time. This is the decision that is the subject of the present review.

The Adjournment Request

[10] A few days before the hearing of this panel review, the moving parties wrote to the court requesting an adjournment, which was denied. The moving parties advised the court that they were involved in a motor vehicle accident in the United States on August 21, 2025, resulting in the moving parties being taken to the E.R. of a hospital in Pottstown, Pennsylvania. They were released from the hospital after diagnostic testing and receiving medication. Prior to the hearing, the moving parties advised that they were unable to participate in the panel review as a result of their injuries from the accident. The court advised the moving parties that the E.R. documentation was insufficient, and that documentation indicating that their medical conditions prevented their participation in the appeal would be necessary to support the adjournment request.

[11] The day before the hearing, the moving parties provided an affidavit dated August 26, 2025, attaching once again the E.R. documentation in support of their repeated assertion that, due to the injuries sustained in the accident, the moving parties were "under medical instruction to rest and avoid exertion" and therefore were unable to prepare for or attend the motion.

[12] As is apparent from the procedural history of this litigation set out above, and as highlighted by the motion judge, the moving parties have engaged in a pattern of delay and missed deadlines. In our view, and in light of this pattern, the moving parties failed to provide medical documentation substantiating their assertion that their injuries rendered them unable to participate in the panel review. In the circumstances, no further delay is warranted.

[13] At the hearing, Mr. Talpade appeared virtually to make submissions in support of an adjournment and to state again that the moving parties were not able to participate in the hearing.

[14] In the absence of medical documentation confirming the moving parties' inability to participate in the hearing, the panel confirmed that the adjournment request was denied.

The Recusal Request

[15] Prior to leaving the hearing, Mr. Talpade, on behalf of the moving parties, requested that Sossin J.A. recuse himself on the basis of a conflict of interest.

[16] Mr. Talpade submitted that Sossin J.A.'s decision, as the presiding judge on the panel, denying the adjournment request, reflected a predetermination adverse to the moving parties and it would be inappropriate for Sossin J.A. to continue on the panel hearing the review.

[17] The responding parties argued that a recusal was not warranted.

[18] The panel retired to consider this request and determined that there was no basis for a recusal in these circumstances. The decision to refuse an adjournment does not support the moving parties' position that Sossin J.A. had predetermined the matter. It is well established that disagreement with a party's position, without more, does not support a finding of bias or reasonable apprehension of bias: See e.g., De Jesus v. Linamar Holdings Inc., 2017 ONCA 384, 41 C.C.E.L. (4th) 58, at para. 17.

The Motion Judge's Decision

[19] As set out above, we did not have the benefit of oral submissions from the moving parties in support of their motion for a panel review of the motion judge's decision denying their motion for an extension of time to review Coroza J.A.'s decision. The moving parties, in their factum, argue that this court "dismissed their appeal" based on procedural irregularities without considering the merits or the existence of a miscarriage of justice. The moving parties further argue that the motion judge, together with other judges of this court who denied their requests for procedural relief, failed to appreciate the challenges the moving parties faced as self-represented litigants, and cited, in particular, delayed access to transcripts from the underlying hearing before de Sa J.

[20] A motion judge's decision to grant or deny a motion to extend time is discretionary and is entitled to deference on review: Asghar v. Toronto (Police Services Board), 2021 ONCA 338, at para. 6. It should not be disturbed absent legal error, a demonstrated error in principle or misapprehension of material evidence: Asghar, at para. 6. Therefore, the question is whether the motion judge, in denying the moving parties' motion, applied the appropriate factors and governing principles.

[21] In this case, the motion judge considered and applied the factors set out in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (4th) 636, at para. 15, including:

(a) The merits of the proceeding;

(b) Whether the party formed an intention to seek the review within the relevant period;

(c) The length of, and explanation for, the delay;

(d) Prejudice to the respondent; and

(e) Whether the justice of the case requires that an extension be given.

[22] Regarding the merits of the proceeding, the motion judge held that the moving parties failed to establish that the proposed panel review of Coroza J.A.'s order had merit. She noted that a panel may interfere with a motion judge's decision only if the motion judge failed to identify the applicable principles, erred in principle, or reached an unreasonable result: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18. She found that no such errors were present in Coroza J.A.'s decision.

[23] With respect to whether the moving parties formed an intention to seek the panel review within the relevant time period, the motion judge found that, given the New Years Day holiday and weekend, the moving parties did file their notice within the four-day time period prescribed by r. 61.16(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[24] That said, the motion judge concluded that the moving parties did not provide a satisfactory explanation for their delay in perfecting the panel review motion. While the moving parties did introduce evidence of a fall suffered by Mr. Talpade causing a concussion, the motion judge found that the deadline to perfect the appeal was approximately six weeks before Mr. Talpade suffered that fall, and therefore, the fall itself did not adequately explain the delay.

[25] Finally, in addressing the prejudice to the responding parties, the motion judge held that granting an extension of time would prejudice the responding parties by continuing to prevent them from exercising their rights under the RSLA to auction the disputed property.

[26] Overall, the motion judge found that the "justice of the case" did not support granting an extension of time.

[27] Based on her assessment of these factors, and considering the justice of the case as a whole, the motion judge dismissed the moving parties' motion.

[28] It is clear that the moving parties have real concerns with the decision of de Sa J. and the dismissal of their appeal of that decision. None of these concerns, however, relate to what is at issue in this review, that is, the motion judge's application of the governing principles to the factors for an extension of time. This review is not a de novo consideration of the moving parties' request for an extension of time, nor is it a fresh opportunity to argue whether the Registrar should have dismissed their appeal for delay: Asghar, at para. 6. The moving parties do not point to an error by the motion judge in her analysis or the application of the Enbridge factors set out above.

[29] We see no reversible error in the motion judge's exercise of her discretion.

[30] Finally, the responding parties argue that various parts of the record filed by the moving parties on this motion constitute fresh evidence and should not be considered. There is no motion for fresh evidence before the panel, and in light of our disposition of the motion, we need not address this issue.

[31] While the responding parties also made no motion to admit fresh evidence, counsel for the responding parties advised the panel that since the record was finalized for this review, the responding parties have now finished auctioning the contents in storage at issue in this litigation. Thus, it appears that the appeal underlying the motion before us is now moot, which adds further support to the conclusion that the interests of justice in this case do not warrant further extensions of time: see Fontaine v. Canada (Attorney General), 2021 ONCA 931, at paras. 13-14.

Disposition

[32] For these reasons, we dismiss the motion.

[33] The responding parties are entitled to costs, in the amount of $5,000, all-inclusive.

"L. Sossin J.A."

"L. Favreau J.A."

"D.A. Wilson J.A."