CITATION: Demir v. Kilic, 2018 ONSC 2891
DIVISIONAL COURT FILE NO.: 161/18 DATE: 20180507
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
HACI AHMET DEMIR
Bruce G. McEachern, for the Plaintiff (Respondent)
Plaintiff (Respondent)
– and –
ERDAL KILIC
Cathleen Brennan, for the
Defendant/Appellant
HEARD at Toronto: May 7, 2018
Harvison young J. (Orally)
Introduction and Background
[1] The Defendant Erdal Kilic moves for an extension to serve and file a notice of appeal. The litigation arises out of a construction lien action. Mr. Kilic bought a house in Toronto in 2012. The Plaintiff Haci Demir carried out the work. He arranged for, supervised the renovation, and paid workers for their time and work. Mr. Kilic reimbursed him from time to time upon request. When the project was nearing completion in 2013, the relationship ended, apparently over further funds that Mr. Demir asked for. Mr. Demir registered a construction lien.
[2] The trial took place before Master Albert. The central issues were whether the parties entered into a contract and if so on what terms, and second, whether Mr. Demir was liable for deficiencies. The Defendant argued that there was a fixed price contract. The Plaintiff Mr. Demir was arguing that it was cost plus and that he was owed a 20% management fee. Master Albert found that the parties had agreed to a contract based on the cost of labour and materials. She also found that the Plaintiff had not discharged his onus of showing that there was a management fee.
[3] The Plaintiff Mr. Demir moved to oppose the confirmation of the report, seeking an order setting it aside and ordering a new trial on all issues before a different Master. Mr. Kilic sought an order confirming the report. Through reasons released on February 8, 2018, Perell J. allowed the motion, set aside the Master’s report, and granted Mr. Demir judgment. Justice Perell accepted Master Albert’s findings of fact as well-founded, but found that “she made a palpable and overriding error in concluding that any contract had been proven. There was a contradiction between her findings of fact and her conclusion, and this makes the judgment unreasonable and reversible.” [para. 7]
[4] Justice Perell found that while “there was a strong evidentiary basis for her to conclude that the parties intended to create a legally binding contract, “...there was no basis for her to find that they ever reached agreement on all of the essential terms of the contract” and so concluded that her conclusion was unreasonable. [para. 20]. Instead, he imposed liability under the alternate ground pleaded, quantum meruit. He also awarded the management fees.
Analysis
[5] The test for granting an extension of time to serve and file a notice of appeal is well settled.
[6] On a motion for an extension of time for serving and filing a notice of appeal, a court will consider the following factors:
(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 merits of the appeal.
(Petrykowski v 553562 Ontario Ltd., 2011 ONSC 1101, 2011 CarswellOnt 1014)
[7] These criteria are subject to the broader principle that an extension should be granted if the justice of the case requires it.
[8] The parties agree that the first three considerations are met.
[9] It is clear from the record that Mr. Kilic formed the intention to appeal from the Perell J. decision within the applicable time period. The only reason he did not actually do so was that his former lawyer, apparently through inadvertence, advised him that the appeal deadline was March 10, 2018. In fact, the applicable deadline under the Constructions Lien Act was February 23, 2018. Mr. Kilic retained present counsel on February 27, 2018. There is no dispute that counsel moved promptly, obtaining the file from former counsel and filing a notice of appeal and certificate respecting evidence on March 8, 2018.
[10] Mr. McEachern, however, submits that the motion should be dismissed because the appeal does not have “sufficient” merit and that there is “no realistic chance that the panel would reinstate Master Albert’s decision or confirm her report.” He also submits that the only consequence of success for his client would be that a new trial would be ordered to address Mr. Demir’s quantum meruit claim, which Mr. McEachern conceded was not fleshed out in Perell J’s decision. He also submits that there is no “justice” consideration that should operate to allow the extension of time sought in the presence circumstances.
[11] With respect, I disagree.
[12] First, Mr. McEachern’s submissions effectively presume that the consideration with respect to “merits of the appeal” requires the moving party to show that the appeal would succeed. The “merit” limb of the test does not require that. As the Divisional Court held in Imperial Trim v Am-Stat Corporation, 2017 ONSC 734, 2017 CarswellOnt 1035 the applicant need only show that there is a “real issue”.
[13] The present case raises real issues as to the standard of review applied by Perell J. in finding that, despite her findings of fact, Master Albert committed palpable and overriding error in concluding that the parties did have a contract, though not a fixed price contract as asserted by the Defendant. For Mr. Kilic, Ms. Brennan submits that Perell J. did err in finding that Master Albert fell into palpable and overriding error, and that given the standard of review to be applied by the Divisional Court on an appeal from Perell J., the appeal would succeed. Ms. Brennan points to Perell J.’s specific agreement with the Master’s factual findings. Moreover, as Mr. McEachern acknowledges, Perell J.’s reasons do not explain why he awarded quantum meruit rather than sending it back for trial.
[14] There is a live issue as to whether Perell J. was correctly applying the standard of review, or whether he was actually applying the correct standard of review. I have no doubt that this case presents a “real” issue for appeal. Indeed, the fact that counsel’s arguments before me were nuanced, lively and that the answers not obvious underline this point.
[15] In addition, there is an issue as to whether he appropriately substituted quantum meruit for contractual liability rather than sending it back to trial before another Master.
[16] In short, Mr. Kilic formed an intention to appeal within the relevant period. He did what he could to ensure that his lawyers did so, and when he became unsatisfied about the progress, he changed lawyers. His new and present counsel moved quickly, so that the ultimate delay was only about 2 weeks. The delay is fully explained by his former lawyer’s mistake.
[17] There can be no prejudice to the respondent arising from this delay in these circumstances. The Plaintiff through counsel concedes that he was caused no prejudice by the roughly two week delay in filing the notice of appeal.
[18] As I have already discussed, there are “live” issues for an appeal, which satisfies the requirement that the appeal has merit.
The Justice of the Case
[19] Finally, both parties submitted that the overall justice of the case favours their position. Mr. McEachern submits that allowing the motion will undermine the principle that the Construction Lien Act, R.S.O. 1990, c.C30 provides for speedy efficient resolution of the dispute. Taking that argument to its logical extension, however, would suggest that his client should not have opposed the confirmation of the report, as he did, before Perell J.
[20] In my view, the “justice” consideration must consider the other factors in the test as well. An appeal that Mr. Kilic would otherwise have clearly had, and wanted to have, would be defeated because of a mistake his former lawyer made. I find that the justice of the case in the present circumstances favours the granting of the appeal. For these reasons, the motion is allowed.
Costs
[21] Costs are fixed in the amount of $6000 inclusive of disbursements and HST, payable to the appellant in the cause.
___________________________ harvison young J.
Date of Reasons for Judgment: May 7, 2018
Date of Release: May 9, 2018
CITATION: Demir v. Kilic, 2018 ONSC 2891
DIVISIONAL COURT FILE NO.: 161/18 DATE: 20180507
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
HACI AHMET DEMIR
Plaintiff (Respondent)
– and –
ERDAL KILIC
Defendant/Appellant
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: May 7, 2018
Date of Release: May 9, 2018