Men at Work General Contractors Ltd. v. MacDonald et al., 2015 ONSC 860
CITATION: Men at Work General Contractors Ltd. v. MacDonald et al., 2015 ONSC 860
DIVISIONAL COURT FILE NO.: 432/14
DATE: 20150206
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Men at Work General Contractors Ltd. Plaintiff/Respondent
– and –
Ross MacDonald and Jacqueline Marcia Phillip Defendants/Appellants
COUNSEL:
Michael Meredith, for the Plaintiff/Respondent
Michelle R. Theberge, for the Defendants/Appellants
HEARD at Toronto: December 11, 2014
REASONS FOR DECISION
HARVISON YOUNG J.
[1] The moving parties seek leave to extend the time to appeal a decision rendered by Macdonald, J. on June 18, 2013.
[2] The history of this application is somewhat unusual and it will be helpful to summarize the chronology here.
[3] The plaintiffs/respondents (“Men at Work”) were hired to renovate a residential property (“the project”) for the defendants/moving parties (“moving parties”), Ross Macdonald and Jacqueline Marcia Phillip. This work was performed between November 2007 and June 2008. In June 2008, a dispute arose over the costs of the project and work ceased. On September 12, 2008, Men at Work commenced construction lien proceedings against the defendants/moving parties in the amount of $60,937.76. The moving parties counterclaimed for $150,000, subsequently particularized to $63,000.
[4] A summary trial was held before Master Polika on September 29 and 30, 2010. At trial, Master Polika held that Men at Work and the moving parties should each bear 50% of the burden for the cost overruns. He also awarded $15,002 in damages to Men at Work. He found the lien claim failed and he dismissed the moving parties’ counterclaims in their entirety.
[5] On October 30, 2012 and November 1 and 22, 2012, Men at Work argued a motion before Justice Macdonald to oppose confirmation of the Master’s report.
[6] Seven months later, on June 18, 2013, Macdonald J. released her reasons and ordered that Men at Work’s “appeal” was allowed. Pursuant to the Construction Lien Act, s. 71(2), the appeal period from such a decision is 15 days. In this case, that date would have fallen on July 3, 2013.
[7] Following the release of Justice Macdonald’s reasons, in a letter dated June 27, 2013, counsel for the moving parties wrote to counsel for Men at Work indicating that she had received instructions to appeal the decision if a settlement could not be negotiated. A subsequent letter dated July 29, 2013 included both a settlement offer and the statement that counsel for the moving parties believed there were “substantial issues with the judgment/order which may have to be resolved directly with Justice Macdonald before any further steps are taken.” On August 14, 2013, counsel for the moving parties wrote again to counsel for Men at Work requesting a response to the July 29 letter and stating that if they did not receive a response to the settlement offer, they would be writing to Macdonald J. to “address the issues which need to be resolved before we can proceed with an appeal.” That same day, counsel for the defendants/moving parties telephoned Justice Macdonald’s assistant asking if it was appropriate for her to contact Macdonald J. seeking clarification of her reasons.
[8] On August 20, 2013, Men at Work’s counsel wrote to the moving parties’ counsel stating the settlement offer was rejected and that they would reply with a counter offer by August 29, 2013. On August 30, 2013, Men at Work’s counsel wrote to the moving parties’ counsel notifying them that Men at Work had retained new counsel. In response, on September 4, 2013, the moving parties’ counsel wrote to Men at Work’s new counsel stating that they would like to settle and that if Men at Work are not invested in settlement, “we have instructions to appeal.” The email then stated that if Men at Work were not interested in engaging in settlement discussions, “we will be sending a letter to Justice Macdonald to address the issues with the order which will need to be resolved before we can proceed.”
[9] On September 12, 2013, counsel for Men at Work requested that the moving parties’ counsel not write to Macdonald J. without providing a draft of her letter a least a few days prior. On September 18, 2013, counsel for the moving parties wrote to Macdonald J. seeking clarification of her reasons for the purpose of preparing a draft order. On September 27, 2013, counsel received a response from Ms. Roslyn Levine advising of Justice Macdonald’s retirement and directing the parties to apply to have the order settled by another judge pursuant to rule 59.04(3).
[10] On October 18, 2013, counsel for the moving parties wrote to Men at Work’s counsel regarding Macdonald J.’s retirement and stated that if no settlement was possible, she had instructions to bring a motion to settle the order and/or a reconsideration motion. On October 30, 2013, counsel for Men at Work wrote to counsel for the moving parties and stated that “as you know, my client’s position is that there is no issue concerning the terms of an Order.”
[11] The parties also had an outstanding issue with regard to costs submissions, and counsel for Men at Work wished to hold a case conference at which the parties could deal with this issue as well as the request to settle the order. Efforts to schedule this conference persisted from November 27, 2013 until May 21, 2014, when the matter was heard before RSJ Morawetz by way of motion.
[12] On July 15, 2014, RSJ Morawetz released his decision, in which he concluded he did not have authority to rehear the matter. He concluded the order could be settled pursuant to Rule 59.04(3). RSJ Morawetz also awarded costs to Men at Work for the motion before Macdonald J. in the amount of $45,000.
[13] On July 29, 2014, the moving parties served a Notice of Appeal on Men at Work. When they attempted to file the Notice of Appeal at the court, they were advised they needed to bring a motion for an extension of time in which to appeal.
[14] On October 2, 2014, a motion seeking an extension of time to appeal was heard by Justice D. M. Brown. Justice Brown adjourned the motion until after the parties’ appearance before RSJ Morawetz on October 7, 2014, at which the parties were seeking to clarify the terms on which the order had been settled.
[15] The parties appeared before RSJ Morawetz on October 7, 2014 and the order was finalized on October 16, 2013.
[16] Men at Work vigorously opposes the granting of the extension, submitting that the test which is applicable to the extension of time is not met, and more generally, submitting that it is unfair to them to allow the moving parties another “kick at the can.” Mr. Meredith on its behalf argued that permitting an appeal at this stage is disproportionate to the amount of money in issue and noting that the moving parties have spent more than that amount of money on legal fees.
Law and Analysis
[17] The test applicable to the question of whether the time for filing a notice of appeal should be extended is well known. The factors are set out at Rule 3.02(1) and include:
a. whether the appellant formed an intention to appeal within the relevant time period;
b. the length of the delay and the explanation for the delay;
c. prejudice to the respondent; and
d. the justice of the case, including the merits of the appeal. See: Bagnulo v. Complex Services Inc., 2013 ONSC 3311 (Div. Ct.), at para11; Enbridge Gas Distribution Inc. v. Froesei¸ 2013 ONCA 313, at para 15; Rizzi v. Mavrosi, 2007 ONCA 350, at para. 16.
[18] As Simmonds J.A. stated in Kefeli v. Centennial College of Applied Arts and Technology 2002 24017(ONCA) at para. 14:
[…]The general rule that the appellant 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 a broader principle that an extension should be granted if the justice of the case requires it: Frey v. MacDonald(1989), 33 C.P.C. (2d) 13 (Ont.C.A.).
[19] In my view, leave to extend the time within which to appeal should be granted in this case.
[20] To begin with, the record makes it clear that the moving parties formed an intention to appeal within the prescribed period. In his affidavit, Mr. Macdonald states that he “immediately gave my counsel instructions to either try to settle the matter or if she was unable to do so, to start the appeal process”. This is not a case where no intention was formed until after the expiration of the appeal period.
[21] Mr. Macdonald’s affidavit continues to outline the explanation for the ensuing delay. During the period between the release of Macdonald J.’s decision and RSJ Morawetz’s decision, the parties, and particularly the moving parties, were actively attempting to obtain clarification of the motions judges’s decision, which was a reasonable course to take given the brevity of her reasons, despite the fact that RSJ Morawetz ultimately concluded that the essence of the relief sought by the defendants was that of appeal rather than clarification. The parties were also engaged in settlement discussions.
[22] As I have indicated, the circumstances in this case are unusual. There can be no doubt that the defendants were actively seeking clarification of the motions judge’s decision. This process took an unfortunately lengthy period of time, and a significant portion of this had to do with the fact that the motions judge had retired. I find that the moving have set out a reasonable explanation for the delay. This is not a case where a party simply “sat on its hands” for an extended period of time.
[23] Men at Work also asserts that there was no explanation for the delay since RSJ Morawetz’s decision on July 14, 2014. RSJ Morawetz concluded that he did not have authority to rehear the matter, and that s. 123 of the Courts of Justice Act did not apply to provide a remedy for the defendants’ problem in the matter, which he found to be in the nature of an appeal.
[24] The moving parties served a Notice of Appeal on Men at Work on July 29, 2014 but were advised that they would need to bring a motion for an extension of time in which to appeal. Counsel were still not able to agree on the wording for the draft order. The draft order was not settled until October 7, 2014. There remained some outstanding details concerning the order and it was not ultimately settled and entered until November 5. 2014. During that period there were other short delays for which, in my view, the moving parties cannot be blamed.
[25] Men at Work also asserts that the general rule provides that the time runs from the time of the rendering of the judgment, not from the entering of the order. This rule is subject to situations where there are substantive issues involved and in my view that was the case here. For example, according to Justice Brown’s endorsement dated October 2, 2014, it was not clear precisely what relief had been granted by Macdonald J.’s judgment. While the moving parties’ position that there were substantive issues arising from the order may or may not have been correct, given the nature of the procedure to confirm a Master’s Report, I am satisfied that the moving parties were of the view that there were such substantive issues, and the resolution of those issues did, in my view, form a reasonable basis for at least some of the delay that occurred.
[26] In the circumstances of this case, I am not satisfied that Men at Work has suffered any prejudice from the delay that should weigh against an extension of time. As I have set out above, it has been clear throughout that the defendants were not prepared to accept the motions judge’s decision. The essence of Mr. Meredith’s submission on this point was that his clients deserve to be paid after such a long time and that the amount of money that the defendants have spent on the matter is disproportionate to the amount of his client’s claim. While there can be no doubt that the delay in this matter is most regrettable, the prejudice of which he complains is not prejudice which is relevant to this application to extend. The prejudice of which Men At Work complains could be readily compensable by a costs order.
[27] With respect to the merits, this is not a case in which it is possible to say that there is no merit to the moving party’s case. Two adjudicators have come to a very different result, and the most recent result is based on reasons that are very sparse. This is not a case where the motions judge confirmed the Master’s Report and an inordinate delay has followed that. Given the brevity of the motions judge’s reasons and the fact that her decision reversed findings of fact, I am unable to say that there is no merit to the appeal.
[28] While I have considerable sympathy for Men At Work’s position on this motion, and indeed for both parties in light of the delays and procedural complications that have plagued this matter, I conclude that refusing leave to extend the appeal period would not serve the interests of justice in this case. Rather, it would frustrate the rationale which underlies the test, and the centrality of the interests of justice. Given the twists and turns of this unfortunate course of litigation over a relatively small amount of money, it would be arbitrary to cut it off at the knees now.
[29] The motion to extend the time period is granted. The Notice of Appeal is to be filed no later than 7 days from the date of these reasons for decision. Costs of this motion are fixed in the amount of $4,200 inclusive of costs and HST, to be awarded in the cause.
___________________________ Harvison Young J.
Released: February 6 2015
CITATION: Men at Work General Contractors Ltd. v. MacDonald et al., 2015 ONSC 860
DIVISIONAL COURT FILE NO.: 432/14
DATE: 20150206
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Men at Work General Contractors Ltd. Plaintiff/Respondent
– and –
Ross MacDonald and Jacqueline Marcia Phillip Defendants/Appellants
REASONS FOR JUDGMENT
Harvison Young J.
Released: February 6, 2015