CITATION: Sangha v. Superior Design Developments Inc. 2018 ONSC 5628
COURT FILE NO.: Div. Ct. 18/561
DATE: 2018/09/26
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Tajinder Singh Sangha aka Tajindepal
Albert Campea for the Plaintiff
Plaintiff
- and -
Superior Design Developments Inc. & Rajinder Singh Burma aka Raj
Defendant
Shahida Faisal for the Defendant
HEARD: September 24, 2018 at Toronto
PERELL J.
REASONS FOR DECISION
[1] The Defendants, Superior Design Developments and Rajinder Singh Burma, bring a motion for an extension of time to file a Notice of Appeal from the Order of Deputy Judge R.A. Fellman.
[2] In the Burlington Small Claims Court, the Plaintiff, Tajinder Singh Sangha, sued the Defendants for damages arising from a breach of a home renovation contract. Superior Design and Mr. Burma counterclaimed.
[3] Deputy Judge R.A. Fellman presided at the trial. The trial dates were April 10, 2017, August 10, 2017, and April 24, 2018. Mr. Sanga was represented by a para-legal. Superior Design and Mr. Burma were represented by counsel.
[4] On July 6, 2018, the Deputy Judge released his decision. After setting off a $1,000 award to the Defendants, he awarded Mr. Sanga $8,749.99 plus pre-judgment interest from January 31, 2017, plus post-judgment interest, plus costs to be determined.
[5] In his Reasons for Decision, the Deputy Judge made an item by item assessment of Mr. Sangha’s claim for damages. The Deputy Judge found as a fact that the Defendants breached the renovation contract and their duty of care in negligence by not completing the re-modeling in a good and workmanlike manner. He found that the kitchen re-modeling had to be re-done, and all of the electrical work had to be re-worked.
[6] Superior Design’s and Mr. Burma’s counsel did not receive a copy of the Decision until July 18, 2018. On July 18, 2018, Mr. Burma gave his lawyer instructions to appeal.
[7] The time for delivering a Notice of Appeal is thirty days from the release of the judgment; i.e., in the immediate case, by Monday August 6, 2018. In the immediate case, if the time for delivering a Notice of Appeal was calculated from the date of the receipt of the decision, the due date would be Friday August 17, 2018.
[8] The Defendants did not deliver a Notice of Appeal by either August 6, 2018 or by August 17, 2018.
[9] On August 23, 2018 while the parties were waiting for the release of a costs decision, Mr. Sanga’s representative demanded payment of the judgment.
[10] On August 28, 2018, in response to this demand that the judgment be paid, the Defendants’ lawyer advised for the first time that the Defendants were in the process of filing an appeal.
[11] On August 31, 2018, the Defendants brought a motion for an extension of time to appeal. Their motion record included the proposed Notice of Appeal. The proposed Notice of Appeal stated that the grounds of appeal were as follows:
The Deputy Judge has directed judgment against Superior Design in the amount of $8,749.99, which is unjust.
The learned Deputy Judge failed to notice that Plaintiff failed to pay remaining outstanding amount for work which was done by Superior Design Development Inc.
The learned Deputy Judge has totally ignored the pleadings and evidence of the defendants and has landed in an incorrect conclusion.
The learned Deputy Judge erred in fact and law when he relied on biased report and evidence of expert.
The learned Deputy Judge has wrongly appreciated the concept of tort of negligence/damages to this case.
In general, the learned Deputy Judge has wrong appreciated the facts plead and proved by the plaintiff and misapplied the law and has landed in an erroneous conclusion resulting in costs to the defendant.
[12] On a motion to extend the time for filing an appeal, the overarching principle is whether justice requires that an extension be given to the moving party having regard to the circumstances of the particular case, including, among other factors: (a) whether and when the moving party formed a bona fide intention to appeal; (b) the length of the delay in launching the appeal; (c) the explanation for the delay; (d) any prejudice to the responding parties caused by the delay, (e) and the merits of the proposed appeal.[^1]
[13] In the immediate case, I accept that the Defendants formed an intention to appeal by July 18, 2018, but they provide no explanation why they did not act on that intention before August 28, 2018. On July 18, 2018, the Defendants still had 19 days from the date of the release of the decision to appeal, a more than ample time to prepare even a bare-boned Notice of Appeal, which is what they ultimately delivered 54 days after the release of the Reasons for Decision.
[14] In their material for the motion for an extension of time, there is nothing to suggest that the Defendants have an arguable case for an appeal. The grounds of appeal are simply based on alleged failure by the Deputy Judge to consider their evidence and to come to a decision in their favour. For their motion for an extension of time to appeal, the Defendants had ample time to set forth some merit to their appeal and some illustration of in what way the trial judge erred.
[15] In the immediate case, having regard to the various factors set out above, the interests of justice do not favour granting an extension of time to appeal. In the immediate case, it appears that there is a meritless proposed appeal bought late and without a reasonable explanation as to why the appeal could not have been brought in a timely way even though there was a delay in receiving a copy of the Reasons for Decision.
[16] Accordingly, I dismiss the motion for an extension of time to appeal.
[17] If the parties cannot agree about the matter of costs, they may make submissions in writing within twenty days of the release of these Reasons for Decision beginning with Mr. Sangha’s submissions, followed by the Defendants’ submissions within a further twenty days.
Perell, J.
Released: September 26, 2018
CITATION: Sangha v. Superior Design Developments Inc. 2018 ONSC 5628
COURT FILE NO.: Div. Ct. 18/561
DATE: 2018/09/26
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Tajinder Singh Sangha aka Tajindepal
Plaintiff
‑ and ‑
Superior Design Developments Inc. & Rajinder Singh Burma aka Raj
Defendant
REASONS FOR DECISION
Perell, J.
Released: September 26, 2018.
[^1]: Roberts v. 603418 Ontario Inc., 2014 ONSC 6240; Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131; Petrykowski v. Bell Cartage and 553562 Ont. Ltd., 2011 ONSC 1101; Rizzi v. Mavros (2007), 2007 ONCA 350, 85 O.R. (3d) 401 (C.A.); Kefeli v. Centennial College of Applied Arts and Technology, [2002] O.J. No. 3023 (C.A.); Bratti v. Wabco Standard Trane Inc. (c.o.b. Trane Canada), 1994 1261 (ON CA), [1994] O.J. No. 855 (C.A.).