DATE: 20010112

DOCKET: M26647

COURT OF APPEAL FOR ONTARIO

MACPHERSON J.A. (In Chambers)

BETWEEN:

DUCA COMMUNITY CREDIT UNION LIMITED

Valerie Edwards for the appellant

Appellant (Plaintiff)

• and -

BENITO GIOVANNOLI, SAM STABILE, SARTAN MANUFACTURING LIMITED, MASTER TUBE MANUFACTURING (1993) LTD., 580129 ONTARIO LIMITED, TONY VALENTI, MARIO DONATELLI, GIOVANNOLI INVESTMENTS LTD., JULSTA INVESTMENTS LTD., AND CLIFFORD HEMMING

William Andrews, Q.C. for Sam Stabile, 580129 Ontario Limited and Julsta Investments Ltd.

Carmen Bush for Clifford Hemming

Respondents (Defendants)

HEARD: December 18, 2000

MACPHERSON J.A.:

A. INTRODUCTION

[1] Rule 61.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that an appeal to an appellate court shall be commenced by serving a notice of appeal on every person whose interest may be affected by the appeal “within thirty days after the date of the order appealed from”. The appellant Duca Community Credit Union (“DCCU”) brings this motion for a declaration that the 30-day period does not commence to run until the disposition of costs by the trial judge. Alternatively, if the appellant does not obtain the declaration it seeks, it requests an order extending the time to serve and file a notice of appeal.

B. FACTS

[2] DCCU, as plaintiff, brought an action for damages arising from an alleged conspiracy among the defendants to engage in transactions for the purpose of preventing DCCU from enforcing a judgment it had obtained against the defendants Benito Giovannoli and two of his companies. The trial took place before Mesbur J. from February 21 – March 3, 2000. She rendered judgment dismissing DCCU’s action on April 10, 2000.

[3] DCCU decided to appeal. Its solicitor prepared a notice of appeal and attempted service on the respondents on May 10, 2000, the 30^th day following the release of the trial judge’s reasons for judgment. If this service had been successful, there would have been compliance with rule 61.04(1).

[4] Unfortunately, the attempted service by facsimile was not successful. When the appellant’s solicitor realized this, he resent the notice of appeal to most of the respondents the next day, May 11. Through inadvertence, two of the defendants, Benito Giovannoli and Giovannoli Investments Ltd., were not served on May 11. This error was not corrected until November 17.

[5] Rule 61.04(4) provides that a notice of appeal must be filed in the Registrar’s office “within ten days after service”. On May 17, 2000, Mr. Swartz attempted to file his client’s notice of appeal in the Court of Appeal registry. This step complied with rule 61.04.(4); however, the court office would not accept it for filing because the original service of the notice of appeal was outside the 30-day period provided for service in rule 61.04(1).

[6] On May 25, 2000, the appellant’s solicitor wrote to the solicitor for Sam Stabile, Julsta Investments Ltd. and 580129 Ontario Limited (“the Stabile defendants”) and to the solicitor for Clifford Hemming. He advised them of the above events and requested their consent to the late filing of the notice of appeal. Mr. Hemming’s solicitor did not respond. The solicitor for the Stabile defendants responded on the same day. He said that he had been instructed by his clients not to consent to the “double” breach of the rules, namely both late service (by one day) and late filing (by four or five days).

[7] Apparently, the appellant’s solicitor believed that the time to appeal had not formally commenced to run since the trial judge had not disposed of costs. It was his intention to wait until the decision on costs was released and then serve the notice of appeal again. Based on this view, he did not believe that it was necessary to bring a motion to extend the time to appeal pursuant to rule 3.02.

[8] On June 21, 2000, the trial judge settled her judgment and heard submissions as to costs. The appellant’s solicitor asked the trial judge to date the judgment June 21. She refused and advised that the judgment would bear the date her reasons were released, namely April 10, 2000.

[9] In October 2000, the appellant’s solicitor sent the file to the law firm Torkin Manes Cohen Arbus for a second opinion. Their advice was that a motion was necessary to extend the time to appeal. The proposed motion was brought to the attention of the respondents’ counsel on November 1 and filed on November 9. Counsel agreed on a return date of December 18. They also agreed that the time between November 1 and December 18 would not be held against the appellant.

C. ISSUES

[10] The appellant raises two issues on this motion:

(1) Does the 30-day appeal period commence with the release of the reasons for judgment by the trial judge or does it commence later after the disposition of other matters such as costs?

(2) If the answer to (1) is that the appeal period commences with the release of reasons for judgment, then is this a case where my discretion should be exercised in favour of extending the time in which the appeal can be brought?

D. ANALYSIS

[11] In my view, the motion can be resolved on the basis of the second issue. Rule 3.02(1) of the Rules of Civil Procedure authorizes a court to extend a time provided by the rules on such terms as are just. In order to obtain an order extending the time to appeal, the appellant must, generally, satisfy the court of the following – it maintained a firm intention from the beginning to appeal, the failure to observe the time limit is reasonably explained, and the “justice of the case” requires that an extension be granted: see Frey v. MacDonald (1989), 33 C.P.C. (2d) 13 at 14 (Ont. C.A.).

[12] There can be no serious question that the appellant in the present case had a firm intention to appeal. It attempted to serve its notice of appeal within the 30-day period prescribed by the rules. It missed the deadline only by one day and only because of inadvertence. Moreover, the appellant attempted to file its notice of appeal in the court registry within the permitted time period.

[13] Whether the appellant has adequately explained its failure to observe the relevant time limits is a more difficult question. The initial failures, in May 2000, are explicable by inadvertence. However, the motion to extend the time within which to appeal was not brought until November 2000. The appellant’s explanation for the delay is that his counsel thought the time period did not commence until after the trial judge had disposed of costs. However, that explanation is somewhat suspect. If counsel truly believed this rationale, why did he attempt to serve the notice of appeal on May 10, long before costs were scheduled to be dealt with? In the end, although I confess it is a close call, I am prepared to find that the appellant has satisfied the second factor. In reaching this conclusion, I am strongly influenced by the fact that the appellant’s initial decision was to appeal and to serve the notice of appeal and file it in the court registry within both of the relevant time periods.

[14] The final factor, the “justice of case”, tells in favour of the appellant. Although the trial judge has written careful and comprehensive reasons for judgment, the issues she considered were difficult ones. I cannot say that there is so little merit in the proposed appeal that the appellant should be denied its important right of appeal. Moreover, there is nothing in the record before me to suggest that any of the respondents would be prejudiced by granting an extension of time to appeal.

[15] In summary, I am satisfied that it is appropriate to grant the appellant a short extension of time to serve and file its notice of appeal.

E. DISPOSITION

[16] The appellant should be granted an extension of time to serve and file a notice of appeal. The notice of appeal should be served on all the respondents within seven days of the release of these reasons, and thereafter filed in the court registry in compliance with the Rules of Civil Procedure.

[17] This is not a case in which the appellant should receive its costs of the motion. It was the appellant’s mistake which caused the motion.

RELEASED: January 12, 2001

(signed) “J.C. MacPherson J.A.”