Court and Parties
COURT OF APPEAL FOR ONTARIO
DATE: 20211206 DOCKET: M52771
Before: Nordheimer J.A. (Motions Judge)
BETWEEN:
Teefy Developments (Bathurst Glen) Limited Plaintiff (Responding Party)
and
Mei Sun also known as Sun Mei Defendant (Moving Party)
Counsel: Paul Robson, for the moving party Asad Moten, for the responding party
Heard: December 3, 2021 by video conference
Endorsement
[1] Ms. Sun brings this motion for an order extending the time for her to appeal the judgment granted by Lemon J. on February 2, 2021 after a trial. [1]
[2] The action itself arises out of a failed residential real estate transaction. The moving party agreed to purchase a new home to be built by the responding party in a subdivision in the City of Vaughan. When the time for closing arrived, the moving party failed to close. The responding party then sued her for damages that arose from the failed transaction.
[3] The responding party brought a motion for summary judgment, which the motion judge dismissed. However, the motion judge directed the trial of certain issues. As it turned out, those issues came on for trial before the same judge as had heard the summary judgment motion. After a two-day trial, the trial judge found in favour of the responding party and awarded it damages in the amount of approximately $200,000. [2]
[4] Two preliminary issues were raised on the motion. First, the moving party objected to the responding party including in its responding material reference to certain settlement discussions that occurred between the parties after the trial judgment. I agree that those discussions should not have been included in the record. Settlement discussions are presumptively privileged. I have therefore not considered the material to which the moving party objected in this regard.
[5] Second, there is an issue over the date from which the appeal period should run. The reasons of the trial judge are dated February 2, 2021. However, there was a disagreement between the parties regarding the calculation of the damages awarded. That issue was not resolved until March 2, 2021 when the judgment was signed and entered. The parties have advised me, however, that the signed and entered judgment bears the date of February 2, 2021.
[6] I do not accept the moving party’s position that the appeal period should run from March 2, 2021. The appeal period runs from the time when the reasons determining the appeal are released. Procedural issues that may arise after the reasons are released, including disagreements over calculations or dates or interest or the like, do not change the date when the action was determined. It is that date from which the appeal period runs. In this case that date is February 2, 2021.
[7] The test for extending the time for an appeal is well-established. Four factors are to be considered, as set out in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15:
The test on a motion to extend time is well settled. The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:
(a) whether the moving party formed a bona fide intention to appeal within the relevant time period; (b) the length of, and explanation for, the delay in filing; (c) any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and (d) the merits of the proposed appeal. [Citations omitted.]
[8] I am not satisfied that the moving party has met her obligation to satisfy (a), (b) or (d) of these factors. On the first factor, the evidence as to the intention to appeal is decidedly unclear. Prior to speaking to her current lawyer, the moving party had spoken with her trial lawyer and then with another lawyer. It is not apparent why either of those lawyers did not pursue an appeal, if that is what the moving party wanted. Indeed, the moving party, in her affidavit, appears to tie her intention to appeal to her communications with her current counsel which she, herself, places in April 2021, which would be two months after the trial decision was released. Even that date is questionable given the evidence that the moving party did not sign a retainer agreement with her current counsel until May 19, 2021. Further, and for reasons that are unexplained, her current lawyer did not contact the responding party’s lawyers until June 15, 2021.
[9] I pause, at this point, to reflect on a rather disturbing issue regarding the moving party’s affidavit filed on this motion. Her counsel advises that the moving party does not read English. When I inquired how she could have then sworn her affidavit in these proceedings, I was met with the remarkable response that “everyone” knows that affidavits are prepared by lawyers and clients simply sign what the lawyers tell them to sign.
[10] It should go without saying that that is not the way that any affidavit is properly prepared. The deponent of an affidavit is required to review its contents and swear or affirm to its truth. It is the obligation of the person commissioning the affidavit to ensure, among other things, that he or she administers the oath or declaration in the manner required by law before signing the jurat or declaration: Commissioners for Taking Affidavits Act, R.S.O. 1990, c. C.17, s. 9(3). If the deponent does not understand English, then the affidavit must be translated for the deponent and the jurat on the affidavit must be changed to reflect that fact.
[11] The result, in this case, from the apparent failure to follow those fundamental procedures, is that it calls into question the reliance that I can safely place on the contents of the moving party’s affidavit.
[12] On the second factor, there is no reasonable explanation for the delay in launching this motion until July 23, 2021. [3] Taking the moving party’s position at its highest, she formed her intention to appeal in April 2021. The only explanation for why the motion was not launched until July 2021 is an asserted delay in getting the file from trial counsel. That is not a satisfactory explanation. The moving party had the trial judge’s reasons. By April, she had had them for a couple of months. The issues that are raised by her with respect to those reasons would be apparent from the face of the reasons themselves. It is not acceptable for the moving party to suggest that she should be allowed yet further time while counsel considered all of the specifics of the case and all of the materials involved in it. The time to appeal was running – indeed it was already passed – and steps ought to have been taken immediately to address that delay.
[13] Most importantly, however, is the fourth factor. I see very little merit in this appeal. In the moving party’s factum, 21 grounds of appeal are suggested. Only three were urged on the motion: non est factum; lack of independent legal advice; and a conflict between the trial evidence and the Agreed Statement of Facts filed.
[14] I do not see any merit in the first two grounds. Non est factum was not pleaded, and I do not see any basis for criticizing the trial judge for not considering a defence that was not pleaded. Actions are decided on the basis of the pleadings. Affirmative defences must be pleaded: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 25.07(4). I also do not see any basis for the advancement of a defence that independent legal advice was not provided. This is not a case of a person who is contracting in support of another person, such as one spouse guaranteeing the obligations of the other spouse. Here, the moving party contracted directly to purchase the home. There was no requirement on the responding party to ensure that she had independent legal advice before signing the agreement of purchase and sale.
[15] As for the complaint that the trial judge erred in relying on the Agreed Statement of Facts when he rejected contrary viva voce evidence, while that might be a concern in another case, I do not see it as one in this case. The parties agreed on certain facts. It appears that a non-party gave some evidence that contradicted one of those facts. I do not see any error, in those circumstances, when the trial judge decides the case on what the parties have agreed are the facts, even if a non-party might have a different position. However, even if that is an issue in this case, it is not one that I view as having sufficient merit, or sufficient impact on the result, that it would carry the day on the fourth factor.
[16] For the sake of completeness, I will mention the third factor briefly, that is, prejudice to the responding party. There is no prejudice here of the type that would preclude an extension of time. The fact that the responding party may be delayed in enforcing its judgment, and that it will incur legal expenses responding to the appeal, is not the type of prejudice to which the third factor is directed. If it were otherwise, every respondent to a proposed appeal would be able to satisfy the prejudice factor. In my view, this case is distinguishable from Bobel v. Humecka, 2021 ONCA 757, on this very narrow point.
[17] In the result, the moving party has failed to meet her obligations to satisfy the necessary factors that would warrant extending the time for an appeal. It may well be that the moving party has a claim against others who were involved in the transaction which she is, of course, free to pursue separate and apart from this action. That does not change the fact that she has failed to satisfy me that there are sufficient reasons to extend the time for her proposed appeal of the trial decision.
[18] For these reasons, the motion for an extension of time to appeal is dismissed. The responding party is entitled to its costs of the motion, which I fix in the amount of $7,500, inclusive of disbursements and HST.
“I.V.B. Nordheimer J.A.”
[1] Teefy Developments v. Sun, 2021 ONSC 853. [2] The parties did not provide me with a copy of the signed and entered judgment, so I am unaware of the exact amount awarded. [3] Pursuant to an agreement between the parties, the more than four months that have passed since July 23, 2021 are not to be considered under this factor.
