Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20231108 DOCKET: COA-23-OM-0284

Roberts J.A. (Motion Judge)

BETWEEN

Adela Belilla Pantoja Applicant (Responding Party)

and

America Alejandra Diaz Belilla and Ligor Bunga Respondents (Moving Parties)

Counsel: America Alejandra Diaz Belilla and Ligor Bunga, acting in person Guillermo Schible, for the responding party, Adela Belilla Pantoja

Heard: November 3, 2023

Endorsement

[1] The self-represented moving parties seek an order for an extension of time to file their notice of appeal from the orders of Morgan J., dated July 6, 2023, and, although not entirely clear from their notice of appeal, from the order of Associate Justice Frank, dated September 7, 2023. The responding party opposes the motion.

[2] This appeal arises out of the acrimonious dispute between family members concerning their respective rights and interests in several properties, including early assignment of agreements of purchase and sale of pre-construction units.

[3] On December 16, 2022, Vermette, J. ordered the sale of the two pre-construction units. The moving parties’ motion for leave to appeal her order was unsuccessful. On July 6, 2023, Morgan J. allowed the responding party’s application for partition and sale and referred the sale process to an associate judge. On September 7, 2023, Associate Justice Frank gave certain directions, including that Ms. Diaz provide an accounting of the funds paid to her under the assignment agreement for one of the pre-construction units, into which Ms. Diaz unilaterally entered contrary to Morgan J.’s order.

[4] The overarching issue in extending time for an appeal is whether the “justice of the case” requires the extension, taking into consideration the following factors: (a) whether the appellants formed a timely intention to appeal; (b) the length of and explanation for the delay; (c) prejudice to the responding party; and (d) the merits of the appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. With respect to the last factor, while the absence of merit can justify the denial of an extension, when assessing the merits of the appeal, I must consider whether the appeal is so lacking in merit that the appellants should be denied their important right of appeal: Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 319, at para. 10; Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, at paras. 20, 21.

[5] The moving parties have not persuaded me that the justice of the case warrants granting the requested extension.

[6] First, there is no evidence that the moving parties formed an intention to appeal during the requisite time period to appeal ending August 8, 2023. At its highest, the evidence suggests that they were toying with the idea but had resigned themselves to the sale process ordered by Morgan J. and case managed by Associate Justice Frank. It was not until September 8, 2023, following the sales process before Associate Justice Frank, with which they were unhappy, that they decided to appeal Morgan J.’s order, as well as the order of Associate Justice Frank.

[7] Second, the delay is inordinate in the circumstances of this case where there is some urgency to the sales given Ms. Pantoja’s financial needs and circumstances. There is no adequate explanation for the delay other than the moving parties’ unhappiness with the sales decisions and process. That they changed their minds about appealing because they did not like the way the sales process was going is not an adequate explanation for the delay in this case.

[8] Importantly, the proposed appeal is without any discernible merit. Any appeal from an order under the Partition Act, R.S.O. 1990, c. P.4, s. 7 is to the Divisional Court. Further, any appeal from an order made by an associate judge, depending on whether the order is interlocutory or final, lies to either the Superior Court of Justice or the Divisional Court: Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 17(a) and 19(c). As my colleague Pepall J.A. concluded in Sabatino, at para. 23, an appeal is meritless where the court has no jurisdiction to hear it.

[9] Moreover, there is no merit to any of the particular grounds that the moving parties asserted in challenge to Morgan J.’s order for a reference and partition and sale.

[10] Morgan J. made no error in ordering the partition and sale of the properties. He did not, as the moving parties assert, state that they had agreed to sell their house. Rather, he noted that the properties had to be sold according to the application of the law. There is no dispute that the parties’ relationship has so badly deteriorated that they cannot agree on anything, including the sales ordered by Vermette J. The case management of the sales by the associate judge was essential to carry out the sales orders.

[11] Morgan J. referenced and applied the correct legal principles, rightly stating that the court has limited jurisdiction to refuse an application for partition and sale. To decline ordering a sale, a court must be satisfied that the party seeking the sale is acting in a malicious, vexatious, or oppressive fashion, and the onus to demonstrate this is the case rests on the party resisting the sale: Inniss v. Blackett, 2022 ONCA 166, at para. 23. That he was not persuaded that the factual circumstances justified an exception was his decision to make and supported by the record before him. The moving parties have pointed to no error other than they are displeased that he did not prefer their version of events.

[12] The moving parties did not raise any specific error with respect to Associate Justice Frank’s role other than to suggest that he could not step into the parties’ place and become a party to the two contracts. There is no indication on the record or in his decision that Associate Justice Frank was purporting to become a party to the contracts. Rather, as Morgan J. noted, the associate judge’s role is to case manage the sales because the parties are unable to agree on anything. Morgan J.’s direction that the parties are required to cooperate with the associate judge belies their suggestion that they no longer have any role.

[13] Finally, the question of the justice of the case includes consideration of the prejudice to the responding party. Ms. Pantoja is disabled as a result of a motor vehicle accident and, according to her affidavit evidence, she poured her settlement from that accident into the subject properties in these proceedings. Any delay is prejudicial to her interests. It is unfair to Ms. Pantoja that she be required to expend any more time and money responding to an appeal that has no prospect of success.

[14] For these reasons, the motion for an extension of time is dismissed. The responding party is entitled to her costs from the moving parties in the amount of $5,000 payable within 30 days from the release of these reasons.

“L.B. Roberts J.A.”