Court File and Parties
DIVISIONAL COURT FILE NO.: 411/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
THOMAS FALUS
Applicant
(Moving Party/Appellant)
– and –
MARTAP DEVELOPMENTS 87 LIMITED, VINCE BENEDETTO, ANTOINETTE BENEDETTO, ANDREW BENEDETTO, PAUL BENEDETTO and JULIA MCGEOWN
Respondents
(Responding Parties/Respondents in Appeal)
Counsel:
Laura F. Cooper, for the Applicant (Moving Party/Appellant)
Ronald B. Moldaver, Q.C., for the Respondents, Vince Benedetto, Antoinette Benedetto, Andrew Benedetto, Paul Benedetto and Julia McGeown
HEARD at Toronto: September 13, 2012
Oral Reasons for Judgment
LAX J. (orally)
Overview
1This is a motion to extend the time for leave to file a notice of appeal. The moving party was unsuccessful before D. Brown J. on an application under sections 207 and 248 of the Ontario Business Corporations Act for buy out orders or alternatively, an order to wind up the corporation.
2His appeal was served and filed in a timely manner but through inadvertence, the Notice of Appeal and Certificate of Evidence was filed in the Court of Appeal rather than in the Divisional Court, as required by s.255 of the Ontario Business Corporations Act (the “OBCA”). One day after the thirty day deadline for filing a Notice of Appeal, counsel for the responding parties advised by letter that the appeal had been commenced in the wrong court. On the same day and in response to counsel’s letter, a second copy of a Notice of Appeal and a Certificate of Evidence was served on the responding parties, with the Divisional Court substituted for the Court of Appeal.
3The Divisional Court would not accept the materials without a consent or order of the Court. The responding parties have refused to consent to a one day extension.
Analysis
4The factors to be considered in granting an extension of time for appeal are:
(i) whether the appellant formed an intention to appeal within the relevant time period;
(ii) the length of the delay and the explanation for the delay;
(iii) any prejudice to the respondent; and
(iv) the merits of the appeal.
See Mignacca v. Merck Frosst Canada Ltd. (Ont. C.A.)
5The Court of Appeal has also held that in determining whether to grant leave to extend the time for appealing, the guiding principle is simply whether the “justice of the case” requires an extension be given.”
6The respondents do not challenge the first three factors, and in my opinion, there is no issue that the moving party has satisfied each of them.
7The motion is opposed only on the fourth factor, namely that the proposed appeal has no merit and the “justice of the case” therefore recommends a dismissal of the notice. The “justice of the case” requires some consideration of the merits, but on a motion to extend the time for appeal, the Court should not be weighing the relative merits of the appeal. It should only be satisfied that the appeal has some merit, particularly in circumstances where the error is inadvertent, the delay is de minimis, there is no prejudice to the respondent and it is clear there was an intention to appeal.
Disposition
8The merits threshold is a very low one and I am unable to conclude that the appeal which is an appeal as of right has so little merit that it should not be allowed to proceed. Fairness requires that an extension of time be granted and I so order. This is a case where there should be no order as to costs.
9I endorse the Motion Record, “Motion is granted for oral reasons. The time for filing the Notice of Appeal is extended to September 24, 2012. Appeal is to be perfected by December 17, 2012. Costs of the motion are fixed in the amount of $750 and are payable in the cause of the appeal.”
LAX J.
Date of Reasons for Judgment: September 13, 2012
Date of Release: September 24, 2012
CITATION: Falus v. Martap Developments 87 Limited, 2012 ONSC 5163
DIVISIONAL COURT FILE NO.: 411/12
DATE: 20120913
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LAX J.
BETWEEN:
THOMAS FALUS
Applicant
(Moving Party/Appellant)
– and –
MARTAP DEVELOPMENTS 87 LIMITED, VINCE BENEDETTO, ANTOINETTE BENEDETTO, ANDREW BENEDETTO, PAUL BENEDETTO and JULIA MCGEOWN
Respondents
(Responding Parties/Respondents in Appeal)
ORAL REASONS FOR JUDGMENT
LAX J.
Date of Reasons for Judgment: September 13, 2012
Date of Release: September 24, 2012