Citation and Court Information
CITATION: The Humane Society of Canada Foundation v. Royal Bank of Canada, 2017 ONSC 959
DIVISIONAL COURT FILE NO.: 39/17
DATE: 20170209
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C.
BETWEEN:
THE HUMANE SOCIETY OF CANADA FOUNDATION
Applicant
– and –
ROYAL BANK OF CANADA
Respondent
Michael O’Sullivan, CEO of the Applicant
Rachel Moses, for the Respondent
HEARD: February 3, 2017
Reasons for Decision
[1] The applicant seeks an extension of time to file an application for leave to appeal a costs order that was made after a summary judgment motion.
[2] A very brief history of the matter is as follows: the applicant sued the respondent for damages arising out of the respondent’s termination of their banking relationship. The respondent successfully moved for summary judgment in that proceeding and obtained a costs order in the amount of $40,000.
[3] The motion judge released her decision granting summary judgment and ordering costs on November 21, 2016. The applicant attempted to appeal the costs portion of the summary judgment decision on December 21, 2016. The applicant subsequently realized that it required leave to appeal the costs portion of the summary judgment decision and that it had to apply for leave within 15 days of November 21, 2016. Accordingly, the applicant applied for leave to extend the time to file its application for leave to appeal.
[4] The respondent resists the motion for an extension of time on the basis that there is no merit in the appeal. As a result, the respondent argues that an extension of time should be refused. The costs order in this matter is significant and I am not prepared to conclude on the basis of the material before me on this application for leave that it is completely without merit. I appreciate that Mr. O’Sullivan was criticized by the Divisional Court in the decision of Gates v. The Humane Society of Canada for the Protection of Animals and the Environment (c.o.b. The Humane Society of Canada), 2016 ONSC 5345. However, I am not satisfied that this criticism should lead me to the conclusion that his appeal from the costs award in this proceeding is without merit.
[5] I am satisfied from the material before me that the applicant has always had a firm intention to appeal. In addition, the applicant’s failure to file within 15 days has been reasonably explained. Finally, I am not satisfied that granting leave would irrevocably prejudice the respondent. See Nguyen v Economical Mutual Insurance Co., 2015 ONCA 828 at para.12. Finally, procedural confusion has been the basis for an extension of time: see Brent v. Brent (2004), 69 O.R. (3d) 737 (C.A.).
[6] According to Rule 3.02(1), I can extend time upon such terms as I think are just. I canvassed with counsel for the respondent and Mr. O’Sullivan, the CEO of the applicant, whether I should order that the application for leave proceed in writing rather than orally. I have decided, after considering the matter, that that is what I intend to do because I think it is a more economical way of considering the application for leave.
[7] Accordingly, the applicant will be granted until February 15, 2017 to provide its submissions, limited to 15 pages, on the appropriateness of the $40,000 costs award. The respondent will provide its submissions, also limited to 15 pages, within 10 days of receiving the applicant’s submissions. The applicant will be permitted to file a reply, limited to 5 pages, within 7 days of receiving the respondent’s submissions.
MARROCCO A.C.J.S.C.
Released: 20170209
CITATION: The Humane Society of Canada Foundation v. Royal Bank of Canada, 2017 ONSC 959
DIVISIONAL COURT FILE NO.: 39/17
DATE: 20170209
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C.
BETWEEN:
THE HUMANE SOCIETY OF CANADA FOUNDATION
Applicant
– and –
ROYAL BANK OF CANADA
Respondent
REASONS FOR JUDGMENT
Released: 20170209