CITATION: The Birkshire Group Inc. v. Wilkes, 2014 ONSC 4408
NEWMARKET COURT FILE NO.: DC-13-000605
DATE: 20140722
ONTARIO
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CONSTRUCTION LIEN ACT, R.S.O. 1990 c.C.30
BETWEEN:
THE BIRKSHIRE GROUP INC.
Plaintiff (Respondent)
– and –
DAVID WILKES and ANGELA WILKES
Defendants (Appellants)
Joel Kuchar, for the Plaintiff (Respondent)
Peter-Paul Du Vernet, for the Defendants (Appellants)
HEARD: June 26, 2014
AND
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID WILKES and ANGELA WILKES
Plaintiffs (Appellants)
– and –
MARIE FIUME and 2044785 ONTARIO INC. operating as FIUME INTERIORS
Defendants (Respondents)
HEARD: June 26, 2014
REASONS FOR DECISION
DiTOMASO J.
THE MOTION
[1] The appellants Wilkes move for an order:
Extending the time for appeal if necessary, and the time within which the moving parties are required to deliver a Certificate of Evidence and Certificate of having ordered evidence until 30 days after further reasons and decision of Justice Edwards have been released;
Setting aside any administrative dismissal of this appeal while this motion has been pending and directions as to the conduct of this motion and appeal.
BACKGROUND
[2] The Birkshire v. Wilkes action was titled in the Construction Lien action. The Wilkes action against Mary Fiume and 2044785 Ontario Inc. was brought in relation to the same transactions and work done. By order of Boswell, J. dated December 23, 2010, the actions were directed to be tried together. The actions were tried, at one hearing before Edwards, J. The last day of hearing was November 20, 2012. Both actions were disposed of in part by one set of reasons released September 10, 2013.
[3] The parties agree that although the Birkshire proceeding was titled in the matter of the Construction Lien Act, and sought construction lien relief, no lien findings were made and no lien relief was granted by the trial judge.
[4] Further attendance to make additional submissions in respect of construction lien relief was scheduled by the trial judge for December 19, 2013 but was cancelled by the trial coordinator at Newmarket as the trial judge was not sitting until January 6, 2014. Both parties agree that the date for re-attendance before Edwards, J. has been scheduled August 1, 2014 to deal with issue of construction lien relief. Further, costs of the trial were reserved.
[5] The appellants Wilkes appealed to both the Court of Appeal and the Divisional Court from the judgment of Edwards, J. dated September 10, 2013 by Notices of Appeal dated October 10, 2013.
[6] By order of Laskin, J.A. dated February 5, 2014, the Deputy Registrar’s order was set aside dismissing Wilkes’ appeal in the Court of Appeal. See decision of Laskin, J.A. (in chambers) dated February 5, 2014, Reply Motion Record of the appellants Wilkes (Motion Returnable April 28, 2014) at Tab D.
[7] The dispute before this court relates to the dismissal of the Divisional Court appeal pursuant to the Registrar’s order dismissing appeal dated March 13, 2014.
[8] Previously, the said Registrar of the Divisional Court by Notice dated January 7, 2014 had forwarded Notice Dismissing Appeal (No Transcript) to the appellants Wilkes and counsel for Birkshire. Pursuant to Rule 61.13(2.1), the Registrar gave notice that the Divisional Court appeal would be dismissed for delay effective January 22, 2014 absent perfection of the appeal.
POSITION OF THE PARTIES
Position of the Appellants Wilkes
[9] The appellants Wilkes submit that there has been an administrative error resulting in the dismissal of their Divisional Court appeal. No judgment has yet issued in respect of the construction lien aspect of the case and the matter is to return before Edwards, J. on August 1, 2014. This is not in dispute. Accordingly, no final judgment has yet been issued and entered.
[10] Further, it was submitted the error is rooted in a misinterpretation of Rule 61.13(2.1) - notice dismissing appeal issued where no transcript is required. In this case, a transcript is very much required.
[11] In addition, there has been no default as the appellants Wilkes had ordered the transcripts on December 30, 2013 as evidenced by Certificate/Proof of Ordering Transcript for Appeal dated January 20, 2014.
[12] It is submitted that there is no basis for the Registrar’s Dismissal Order and, that said, the order ought to be set aside. As the matter will be returnable before Edwards, J. on August 1, 2014, Justice Edwards will be making applicable orders regarding remaining issues such as the disposition of the Construction Lien Act issues and costs. The remedy sought extending the time for appeal, if necessary, should also abide the further reasons and decision of Justice Edwards. It is submitted that the test for extending the time for appeal, if necessary, has been met.
Position of the Respondent Birkshire
[13] It is submitted there has been no administrative error. To the contrary, the appellants Wilkes did not comply in time with the rules and were out of time before they ordered the transcript. It is submitted that the appellants Wilkes ought to have proceeded by way of seeking an extension of time as opposed to setting aside the Registrar’s order. The test for extension of time has not been met. Therefore, the motion ought to be dismissed and the Divisional Court appeal ought to be stayed and the appeal in the Court of Appeal ought to proceed.
ANALYSIS
[14] In respect of the motion to set aside the Registrar’s dismissal order, I find that the appellants Wilkes’ Divisional Court appeal was dismissed by way of administrative error. The order dismissing the Divisional Court appeal either by Notice Dismissing Appeal (No Transcript) effective January 22, 2014, or, in the alternative, the order dismissing appeal dated March 13, 2014 ought to be set aside.
[15] The Notice Dismissing Appeal (No Transcript) was based on the misapprehension that pursuant to Rule 61.13(2.1) no transcript was required in this case. To the contrary, a transcript of the trial proceedings was required and had been ordered by the appellants as early as December 30, 2013. Further, the appellants Wilkes produced Certificate/Proof of Ordering Transcript for Appeal which Certificate is dated January 20, 2014.
[16] In addition, it is clear that both parties agreed that this matter was to return before Edwards, J. on August 1, 2014. They both agree that there is unfinished business that needs to be addressed by the trial judge, namely, his findings and reasons for relief sought under Construction Lien Act. No lien relief has yet been granted by the trial judge and costs are still under reserve.
[17] Both parties agree that as a result of their attendance before Edwards, J. on August 1, 2014, the trial judge will make a number of dispositions which will impact upon both appeals before the Divisional Court and Court of Appeal.
[18] Given the administrative error and looking ahead to further proceedings before the trial judge, it is not in the interests of justice to refuse to set aside the Dismissal Order of the Registrar of the Divisional Court. Accordingly, said order dated January 7, 2014 effective January 22, 2014 and the order dated March 13, 2014 are both set aside.
[19] As to whether time ought to be extended for the appeal, if necessary, as noted, we have yet to receive the final decision of Edwards, J. in respect of the Construction Lien Act issues.
[20] Under s.71(2) of the Construction Lien Act, a judge may extend the time for serving and filing a Notice of Appeal “where an appropriate case is made out for so doing”. Even if there is power to extend the time nunc pro tunc, the applicant would still be required to show:
(a) That there existed a bona fide intention to appeal within the 15 day period;
(b) An explanation for the delay;
(c) That there is no prejudice to Birkshire; and
(d) That that proposed appeal has merit.
See Bob Seabrook Construction Ltd. v. Kenaidan Contracting Ltd. 2008 CarswellOnt 6730 (Div. Ct.); Petroykowski v. 553562 Ontario Ltd., [2011] O.J. No. 734 (Div. Ct.) as cited in 3925308 Manitoba Inc. v. Hoffer, 2011 CarswellOnt 2060 (Div. Ct.).
[21] In his Reasons at paras. 3 and 4, Laskin, J.A. considered this test. He concluded that it would be in the interests of justice to set aside the dismissal for four reasons.
[22] I am guided by the reasoning of Laskin, J.A. where he concludes that the Dismissal Order of the Deputy Registrar regarding the appeal before the Court of Appeal ought to be set aside. I am of the view that the four-prong test for granting an extension has been met in the Divisional Court appeal. The Wilkes did show an intention to an appeal. Even if not arguably in strict compliance within 15 days of the date of the judgment of Edwards, J. dated September 10, 2013, that judgment has not yet been issued and entered and his judgment dealing with construction lien issues has not yet been rendered in order to start time from running within the meaning of s.71(2) of the Construction Lien Act. There has also been explanation for some delay associated with the ordering of the evidence. That delay is relatively short. Lastly, there is no prejudice to the respondent Birkshire whose claim is protected by its lien, still registered on the property.
[23] For these reasons, I would also grant the motion brought by the appellants Wilkes for an order extending the time for appeal as sought in their Notice of Motion.
DISPOSITION
[24] For these reasons, the motion brought by the appellants Wilkes is hereby granted. There shall be order as follows:
Extending the time for appeal if necessary, and the time within which the moving parties are required to deliver a Certificate of Evidence and Certificate of having ordered evidence until 30 days after further reasons and decision of Justice Edwards have been released;
Setting aside any administrative dismissal of this appeal while this motion has been pending and directions as to the conduct of this motion and appeal.
[25] As for costs, the parties agree that costs of this motion are reserved to the panel hearing this appeal, if the appeal is heard.
DiTOMASO, J.
Released: July 22, 2014