CITATION: Petrykowski v. Bell Cartage and 553562 On. Ltd., 2011 ONSC 1101
DIVISIONAL COURT FILE NO.: DC-10-222-ML
DATE: 2011-02-16
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, MACKINNON, KOKE JJ.
BETWEEN:
MAREK PETRYKOWSKI
Plaintiff/Appellant
– and –
553562 ONTARIO LIMITED c.o.b as BELL CARTAGE
Defendant/Respondent
Self Represented
Brian R. Kelly, for the Defendant/Respondent
HEARD: February 16, 2011
Endorsement
Koke J.
[1] The Appellant, Marek Petrykowski issued a claim against the Respondent, 553562 Ontario Limited c.o.b as Bell Cartage (“Bell Cartage” or the “Respondent”) in Small Claims Court. The matter was heard on June 15, 2010 and the trial judge dismissed Mr. Petrykowski’s claim. The reasons for the decision were set out in a ten page decision released by the judge on June 16, 2010.
[2] Dissatisfied with judge’s decision to dismiss his claim, Mr. Petrykowski decided to appeal the decision. On the last day to file his appeal he filed a motion before a judge of the Divisional Court, for an extension of time to file his appeal. The motion was heard after the time for appeal had expired. The motions judge dismissed the motion, largely on the basis that in his view the claim was without merit and had no chance of success.
[3] The Appellant now moves to have the decision of the motions court judge reviewed by a panel of this court.
COURT’S JURISDICTION:
[4] The court’s jurisdiction to hear this matter is found in s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C-43. That section provides, “A panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion.” As the decision in question stems from a motion before a single judge of the Divisional Court, this panel has jurisdiction to hear the present motion to set aside or vary the decision.
STANDARD OF REVIEW:
[5] The general principles concerning appellate review of the decisions of trial and motion court judges are set out in the Supreme Court of Canada’s decision in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[6] Pure questions of law will be reviewed on a correctness standard, where the appellate court may substitute its opinion for that of the trial judge. Questions of fact ought not to be interfered with unless the trial judge has made a palpable and overriding error. Finally questions of mixed law and fact are to be evaluated on a standard of correctness where the error of law can be separated from the facts, otherwise an overriding and palpable error is required (Housen, supra at paras. 8, 10 & 36).
[7] In general, a decision as to whether or not to extend the time to file an appeal requires the motions judge to look at a number of factors; it is therefore best described as a question of mixed law and fact. Furthermore, it is a decision that is within the discretion of the motions judge. Significant deference is thus warranted and the decision should not be disturbed absent an overriding and palpable error.
[8] In this case, Mr. Petrykowski submits the motions judge made palpable and overriding errors in his factual determinations and in the exercise of his discretion. However, he also submits the motions judge erred in law by even considering the merits of the proposed appeal as a factor. A standard of correctness would apply if he is right about that point. Moreover, he submits the motions judge denied him a fair opportunity to be heard. A denial of procedural fairness amounting to a breach of natural justice does not engage the court in any standard of review analysis.
THE QUESTION BEFORE THIS COURT:
This court is asked to decide whether the decision of the motions judge, dismissing Mr. Petrykowski’s motion to extend the time to appeal the decision of the Small Claims Court judge was in accordance with procedural fairness, correct on the law and a proper and reasonable exercise of his discretion.
POSITIONS OF THE PARTIES:
The Appellant
[9] The Appellant asserts that the motions judge’s decision to deny his request for an extension of time to appeal was unreasonable.
[10] Firstly, he contends that it was an error of law for the motions judge to consider the merits of the appeal in deciding the motion. He points out that Section 31 of the Courts of Justice Act, provides an appeal as of right to the Divisional Court from an order of the Small Claims Court in an action for payment of money or recovery of property in excess of $500. Because the appeal is as of right, he reasons that it is improper for a judge to consider the merits on a motion to extend the time to appeal.
[11] Secondly, the Appellant submits that he was denied an opportunity to make oral submissions on the merits of his appeal. The basis of this submission is that he did not realize the motions judge would consider the merits of the appeal until the motions judge denied his request on that basis. He argues that after the motions judge had ruled, he attempted to make further submissions but he was denied an opportunity to do so.
[12] The Appellant relies on the factors set out by the Court of Appeal in Mignacca v Merck Frosst Canada Ltd., 2009 ONCA 393 at para. 11, as to whether a court should exercise its discretion to extend the time for the filing of a notice of appeal. He lists these factors as follows:
whether the Appellant formed an intention to appeal within the relevant period;
the length of the delay and explanation for the delay;
any prejudice to the Respondent; and
the merits of the appeal.
The court also considers whether the justice of the case requires the granting of the extension.
[13] Having reference to these factors, the Appellant argues the extension should have been granted.
[14] He states that it was always his intention to appeal, as evidenced by the bringing of his motion before the expiry of the relevant time period (albeit the last day), and his email correspondence with the responding party’s legal representatives.
[15] The length of the delay (at the time) was insignificant as the motion was brought before the expiry of the relevant time period and the request was only for a few extra days. The Appellant attributes the delay to the nature of his employment and his familial responsibilities. It is his position that the delay was neither significant nor unjustified and would not have occasioned any prejudice to the responding party.
[16] The Appellant also submits that the Respondent would not be prejudiced if he was granted an extension of time to file his appeal.
[17] Finally, with respect to the merits of the appeal, (the ground upon which the motions judge saw fit to dismiss the motion), the Appellant does not specify why his case has merit. Instead, he argues that the “justice of the case” requires the granting of an extension. In his view, it is unjust to deny a person who has a right of appeal an opportunity to do so simply because a few more days are required to file the requisite documents. He takes issue with the motions judge’s use of the word “travesty” to describe his case and instead claims it is a travesty when the government of the country, by means of an act of the legislature, allows a judge to take away a legislated right to appeal.
The Respondent
[18] The Respondent argues that the motions court judge applied the correct test in dismissing the Appellant’s motion. It points out that the courts have consistently held that if a party requests an extension of time to commence an appeal, the factors to be considered by the court include an assessment as to whether there is an arguable case on appeal.
[19] The Respondent asserts that the motions judge made a clear and unambiguous finding that there was no basis or merit to Appellant’s appeal and accordingly he was not prepared to make an order extending the time to appeal.
ANALYSIS
[20] In considering whether to exercise its discretion to extend the time for the filing of a notice of appeal, a court generally considers the following factors:
Whether the Appellant formed an intention to appeal within the relevant period;
The length of the delay and the explanation for the delay;
Any prejudice to the Respondent; and
The merits of the appeal.
The court also considers whether the “justice of the case” requires the granting of the extension: see Kefeli v. Centennial College of Applied Arts & Technology (2002), 23 C.P.C. (5th) 35 (Ont. C.A.), at para. 14, and Rizzi v. Mavros (2007), 2007 ONCA 350, 85 O.R. (3d) 401 (C.A.), at para. 16.
[21] With respect to the term “justice of the case” we would echo the following comments of Laskin J.A. in Bratti v. Wabco Standard Trane Inc. (c.o.b. Trane Canada), 1994 1261 (ON CA), [1994] O.J. No. 855, 25 C.B.R. (3d) 1 (C.A.), at p. 3 C.B.R.:
While appellate courts have considered a number of different factors in determining whether to grant leave to extend the time for appealing, the governing principle is simply whether the "justice of the case" requires that an extension be given.
[22] The term “justice of the case” introduces an overriding element of fairness to the analysis, and encourages a balanced and flexible approach. It also opens the door to the consideration of other factors. For example, in Ahmed v. Health Professions Appeal Review Board, 2009 CanL11 68473 (ON S.C.D.C.), Lederman J. noted that in the Kefeli decision, supra, the court of appeal held that the general rule that the Applicant must have formed an intention to appeal within the relevant time period and must provide a reasonable explanation for any subsequent delay is subject to the broader principle that an extension should be granted, if the justice of the case requires it. Accordingly, Lederman J. took into account the following factors in determining whether to extend time for filing a Notice of Appeal:
a) One of the two Respondents to the appeal consented to the extension;
b) There was no prejudice to the Respondent who refused to consent;
c) Until recently the Applicant was self represented and he was not informed of any right to appeal or the time limit for doing so;
d) The Applicant was not aware of any appeal process;
e) The effect of the decision which he wished to appeal was such that it prevented him from practicing medicine and earning a living;
f) Once the Applicant retained counsel, prompt steps were taken to seek an extension of the appeal.
After considering the above factors, Lederman J. decided that the “justice of the case” warranted an extension of time.
[23] Significantly, Lederman J. did not refer to or apply the “justice of the case” principle to his analysis until he had first determined that the Applicant had what he referred to as an “arguable case” for appeal.
[24] Lederman J.’s approach, in requiring that the appeal is “arguable” or “meritorious” is consistent with the approach taken by other courts. In Kefeli, supra, the court held as follows at paragraph 15:
- For the reasons set out below, I find that the moving party has not established that he formed a firm intention to appeal within the appeal period and that the merits of the appeal do not justify granting an extension based on the "justice of the case”.
[25] In Rosenhek v. Windsor Regional Hospital, [2010] ONSC 583 the Appellant had an automatic right of appeal. When the Appellant failed to file his Notice of Appeal within the requisite time, he brought a motion for an extension of time. Under the heading “Is an Extension of Time required by the Justice of the Case?” the motions judge made the following comments:
46 As is noted in Chuang v. Royal College of Dental Surgeons of Ontario, 2005 28853 (ON SCDC), [2005] O.J. No. 3473, 77 O.R. (3d) 280, in considering the "justice of the case", the court examines the existence of a bona fide intention to appeal within the time period, the length of the Appellant's delay in pursuing the appeal, and the merits of the appeal.
47 Legislative time limits on appeal matters are one of the key factors in moving forward matters of merit, that have a reasonable chance at succeeding on appeal. Litigants need to know when all chances of appeal have expired, in order to move forward themselves. In the case before me, the "justice of the case" requires closure, not another expensive legal step that was said by counsel and the CMPA to have no merit.
[26] Similarly, at paragraph 27 in Rizzi, supra the court held as follows:
27 In light of the merit of the cross-appeal, the competing considerations in respect of prejudice and these fairness concerns, the justice of the case compels me to grant the extension.
[27] The essence of the Appellant’s argument is that it was not necessary for him to demonstrate that his case is meritorious. He relies on the “justice of the case” principle and requests the court to grant him an extension without him having to satisfy the court that he has an arguable case. In fact he goes so far as to suggest that it was an error for the motions judge to consider the merits of the appeal in deciding the motion.
[28] We disagree. The Appellant is asking the court for an indulgence in the form of an extension of time. The case law referred to above makes it clear that the court will only grant such an extension in circumstances where an Applicant has an arguable or meritorious case. The requirement that the case has merit cannot be replaced by an argument that the “justice of the case” requires that the extension be granted. Clearly, in circumstances where the court finds that an appeal is without merit, the court should not be required to assist an Applicant in bringing it forward. As noted in Rosenhek, supra, in such cases the “justice of the case” should compel a court to bring closure to the proceeding instead.
[29] In coming to this conclusion we are mindful of the fact that in all of the cases cited to us the motion for an extension of time was made after time had already expired. Mr. Petrykowski submits that his case is distinguishable because he filed his motion before the time expired, even though it was heard shortly after the time for appeal had run its course. To give effect to that submission would mean that merely filing a motion to extend time before the time expires would obviate any consideration of the merits of the appeal (because it would be considered an appeal “as of right”) truncating the test that has been applied in the past. In our view the test for extending time should not depend on whether the motion is filed the day before or the day after the time for appeal has lapsed. Expressed another way, an Appellant should not be able to avoid some scrutiny of the apparent merit of the appeal when seeking an extension of time simply by beating a deadline in asking for such relief.
[30] We agree that the Appellant meets three of the conditions set out above. We are satisfied that he formed an intention to appeal within the relevant period, that he has a satisfactory explanation for the delay and any delay will not be lengthy. We are also satisfied that if the extension is granted the Respondent will not be prejudiced. We are unwilling to grant the Appellant the relief he requests however unless he also satisfies us that he has an arguable case.
[31] We have reviewed the ten page written decision of the trial judge. The decision indicates that Mr. Petrykowski’s claim is based on allegations of breach of contract and fraud. The only evidence adduced at trial was the testimony of Mr. Petrykowski himself in-chief. He was not cross-examined and the defence led no evidence. Nonetheless, the evidence of Mr. Petrykowski was not enough to establish a breach of contract, or damages. The deputy justice found there was no evidence whatsoever to support the allegation of fraud. Mr. Petrykowski did not establish a contract, written or oral. Nor did he establish an amount that was actually owing to him. Furthermore, the limitation period had expired with respect to a substantial portion of the claim and was statute barred to that extent.
[32] Based on our review of the trial court decision we are led to the inescapable conclusion that Mr. Petrykowski’s appeal could not succeed. He has therefore failed to satisfy the above mentioned test.
[33] We are also satisfied that there is no merit to Mr. Petrykowski’s submission that he was unfairly dealt with by the motions judge in so far as the judge refused to permit him to argue or put forth the merits of his case after he had made his decision. The Appellant had ample opportunity to put forth the merits of his case during his trial, and failed to do so. He failed to address the merits of the proposed appeal in his motion materials. Furthermore, even now he has not brought anything to the attention of this court which suggests that his appeal has any merit. He continues to argue that because he has an appeal as of right it is not necessary for him to demonstrate that his appeal has merit...instead he continues to rely on the “justice of the case” principle.
[34] We have also reviewed the transcript of the motion. We find that the judge provided the Applicant with ample opportunity to present his arguments in support of his motion. The main thrust of the Applicant’s argument with respect to procedural fairness at the trial was that he expected the defendant would testify and that he would have the opportunity to establish important parts of his case through cross-examination. There is no obligation on the part of a party to testify. The Applicant’s own error in that regard does not give rise to a meritorious appeal.
[35] After hearing submissions from counsel for the Respondent and reviewing the material before him, including the written decision of the trial judge, the motions judge provided the following reasons in support of his decision to deny the application:
“I have said application for leave to extend period of time to submit an appeal. I have read the judgment of Deputy Judge Winney, which were - which was quite extensive and thorough. Many issues were canvassed; proof of the claim itself; the limitation period, the requests for adjournments, et cetera. I note the judgment was clear, unambiguous and considered the vague assertions made by the plaintiff. There is no arguable case to appeal. To allow this to continue would be a travesty, simply perpetuating the vague assertions and procedural stops of the past. For all of the above, leave is not granted to extend the time.”
[36] The motions judge based his decision on the failure of the Applicant to satisfy him that his appeal had any prospect of success. He applied the correct legal principles and test to his analysis, and in our view he did so carefully. There is no basis for finding that he erred in any way in coming to his decision. Accordingly, we dismiss the Appellant’s motion.
[37] As the successful party, the Respondent is entitled to its costs. We have considered the offer to settle which was served on the Appellant by the Respondent, as well as the oral submissions from both parties, and award the Respondent its costs in the sum of $3500 inclusive of disbursements and HST.
Aston J.
Mackinnon J.
Koke J.
Released: February 18, 2011
CITATION: Petrykowski v. Bell Cartage and 553562 On. Ltd., 2011 ONSC 1101
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, MACKINNON, KOKE JJ.
BETWEEN:
MAREK PETRYKOWSKI
Plaintiff/Appellant
– and –
553562 ONTARIO LIMITED cob as BELL CARTAGE
Defendant/Respondent
ENDORSEMENT
KOKE J.
Released: February 18, 2011