Court of Appeal for Ontario

Date: 2022-10-21 Docket: M53456 (C70339)

Before: Feldman, Hoy and Lauwers JJ.A.

Between:

Correct Building Corporation and Correct Group Inc. Plaintiffs (Moving Party / Appellant)

And:

Jeffrey Lehman, Jon Babulic, Richard Forward, Janet Foster, Charles Magwood, Edward Archer, Ingrid Peters, Deborah Mckinnon, Jennifer Robinson, Metrolinx, Robert Stewart, Indicom Appraisal Associates Ltd., Alex Nuttall, Jerry Moore, Michael Prowse and The Corporation of the City of Barrie Defendants (Responding Parties / Respondents)

Counsel: Colin Stevenson, for the moving party Albert Formosa and Caitlin Steven, for the responding parties

Heard: September 13, 2022

On review of the order of Justice Lorne Sossin of the Court of Appeal for Ontario, dated May 13, 2022.

Reasons for Decision

[1] The moving party, the appellant Correct Group Inc. (“CGI”), sought a 90-day extension of time to perfect its appeal of the summary judgment decision of Ricchetti R.S.J. of the Superior Court of Justice dated January 25, 2022, with reasons reported at 2022 ONSC 527, in which he dismissed the appellant’s action against the City of Barrie as well as its action against the individual respondents.

[2] The motion judge granted the 90-day extension with respect to the appellant’s appeal against the City of Barrie, but denied the extension in respect of its appeal against the individual respondents. The appellant now moves under r. 61.16(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 before a panel to review the latter decision denying the extension.

[3] A panel review of a motion judge’s decision under s. 7(5) of the Courts of Justice Act is not a de novo determination: Machado v. Ontario Hockey Association, 2019 ONCA 210, at para. 9. Discretionary decisions of a motion judge are entitled to deference. However, a reviewing panel may intervene if the motion judge erred in principle or reached an unreasonable result, or if the motion judge’s decision reflects legal error or a misapprehension of material evidence: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18; Iqbal v. Mansoor, 2022 ONCA 198, at para. 2.

[4] The motion judge succinctly described the issue in the case:

3. The underlying dispute concerns the development of the Allandale Station lands in Barrie and the moving party’s allegation that certain archaeological and environmental reports in the possession of the City should have been disclosed to the moving party.

[5] With respect to the merits of the motion to extend the time, the motion judge found that (1) the delay was a short one; (2) the moving party’s explanation for the delay was reasonable; and (3) if there was any prejudice caused by the brief delay, it was not significant.

[6] He then examined the merits of the appeals against the City of Barrie and against the individuals, who are or were city staff and councillors. He noted that there are a number of grounds of appeal from the dismissal of the action against the City of Barrie, including both legal and factual matters, and concluded that he could not say that the appellant’s appeal against the City of Barrie “lacks merit so as to make denying it the right of appeal reasonable.”

[7] Turning to the action against the individual city councillors and staff members, he noted that the summary judgment judge dismissed it “in a relatively summary fashion”, finding that the allegation of bad faith, which was necessary to overcome the immunity provided in s. 448 of the Municipal Act, 2001, S.O. 2001, c. 25 lacked any evidence and was without merit.

[8] The motion judge saw “no likelihood of successfully challenging this finding on appeal”. He likened this appeal to the one in 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, where the motion judge denied the extension because she found no “scintilla suggesting that the appeal has merit”: at para. 7. On that basis, he denied the extension of time to appeal the dismissal against the individual respondents.

[9] The test for granting an extension of time to appeal, and by analogy, to perfect an appeal was recently stated by Simmons J.A., sitting as a motion judge, in Sheth v. Randhawa, 2022 ONCA 89, at para. 15:

The test on a motion of this kind is well-established. The ultimate question is whether the justice of the case warrants the order requested. Factors to be considered in making the decision are: (i) whether the appellant formed an intention to appeal within the appeal period; (ii) the length of the delay; (iii) the explanation for the delay; (iv) the merits of the proposed appeal; and (v) prejudice to the responding parties.

[10] In this case the appellant appealed on time. It needs only a brief extension to perfect, in large part because of the volume of material to be assembled. There is no discernable prejudice to the respondents. In addition, an extension has been granted against the City of Barrie, so that the material is going to be prepared in any event, and the matter will be dealt with in this court so that court time will be spent on this matter in any event. The question that remained for the motion judge was whether there was some potential merit to the appeal and whether the justice of the case required that the extension be granted.

[11] Traditionally, the merits factor will be used to support granting an extension when the other factors do not favour the applicant, but because there may be some potential merit to the case, it is still in the interests of justice that the applicant’s right of appeal not be removed, just because of lateness: see e.g., Howard v. Martin, 2014 ONCA 309, 42 R.F.L. (7th) 47, at para. 36; Derakhshan v. Narula, 2018 ONCA 658, 142 O.R. (3d) 535, at para. 22. More recently, in 40 Park Lane Circle v. Aiello, 2019 ONCA 451, at para. 8, van Rensburg J.A., sitting as a motion judge, stated:

Turning to the merits of the proposed appeal, the question is only whether there is “so little merit in the proposed appeal that the appellant should be denied [his] important right of appeal”: Duca Community Credit Union Ltd. v. Giovannoli (2001), 142 O.A.C. 146 (C.A.), at para. 14. Even where it is difficult to see the merits of a proposed appeal, a party is entitled to appeal and should not be deprived of that entitlement where there is no real prejudice to the other side: Denomme, at para. 10; Auciello v. Mahadeo, 2016 ONCA 414, at para. 14.

[12] Pet Valu was an unusual case, where the absence of any merit was used by the motion judge to deny the extension. There, the class action judge decided that because on the evidence there was no breach of the franchise agreement by Pet Valu, breach of contract could not be a common issue in the class proceeding. The notice of appeal was generically framed, and the affidavit filed in support of the motion to extend the time to file the notice of appeal and to perfect the appeal did not address the merits. As a result, the motion judge found that there was nothing in the material to undermine the class action judge’s finding, and therefore no basis to find any potential merit in the appeal: Pet Valu, at paras. 7-8. The motion judge concluded therefore that the justice of the case did not require the grant of an extension.

[13] The record in this case is quite different. There was significant evidence of failure by staff to disclose relevant reports to the former mayor of Barrie or to the appellant and evidence that staff had different views on whether development should proceed on the site. The summary judgment judge made a finding that that non-disclosure could not amount to bad faith.

[14] Whether the summary judgment judge applied the correct test to determine bad faith could amount to a question of law on appeal. This was not a case where there was no evidence to found the appellant’s claim against the individual respondents. Nor is this a case where the notice of appeal was only generically framed and the affidavit filed in support of the motion for an extension of time failed to address the merits.

[15] With respect to the motion judge, his decision to deny an extension of time is subject to review by this panel. The motion judge made two reviewable errors: he misapprehended and minimized the potential strength of the merit of the appeal, and he erred in law by failing to apply the principle from 40 Park Lane that even where it is difficult to see the merits of the proposed appeal, a party should not be deprived of their right of appeal when there is no real prejudice to the other side.

[16] It is therefore for this panel to apply the factors in the test for an extension of time. As the motion judge noted, the delay was short and the moving party’s explanation for the delay was reasonable. Although the summary judgment judge dismissed the claim against the individual respondents, his reasons on the issue are relatively summary and it cannot be said that no reviewable errors were made. Moreover, the Barrie appeal is proceeding in any event. The voluminous record is already being produced. There is no prejudice to the other side or to the court to hear both matters together. Indeed, it is more efficient and effective for the court to consider the merits of both matters together, on a full record. Taking all the factors together, the justice of the case requires that an extension be granted to appeal against the individual respondents in addition to the City of Barrie appeal.

[17] The order of the motion judge is therefore set aside and the extension of time to perfect the appeal as requested is granted. Costs of this review are awarded to the appellant in the amount of $5,000, inclusive of disbursements and HST.

“K. Feldman J.A.”

“Alexandra Hoy J.A.”

“P. Lauwers J.A.”