DATE: 20050221

DOCKETS: M32014 (C42615) and M32158

COURT OF APPEAL FOR ONTARIO

RE:

DOUGLAS M. LEE (Plaintiff/Appellant) -and- THE BANK OF NOVA SCOTIA (Defendant/ Respondent)

BEFORE:

FELDMAN, CRONK and LaFORME JJ.A.

COUNSEL:

Douglas M. Lee the appellant in person

David E. Leonard for the respondent/moving party

HEARD AND RELEASED ORALLY:

February 17, 2005

E N D O R S E M E N T

[1] The Bank of Nova Scotia moves to quash the appellant’s Notice of Appeal on the basis that it was filed out of time. The trial judge’s decision was rendered on May 6, 2004. His decision on costs was rendered subsequently, on June 8, 2004. The formal judgment was not issued and entered until late October 2004.

[2] The appellant’s Notice of Appeal was delivered on November 12, 2004, that is, about five months after the thirty-day time limit for the filing of the Notice. Accordingly, the Notice of Appeal was filed late, contrary to the applicable Rules of Civil Procedure.

[3] Although this court has jurisdiction to extend the time within which the appellant’s Notice of Appeal might be filed, we conclude that this is an inappropriate case in which to grant such an extension, for several reasons.

[4] First, in this case, the thirty-day time limit was brought to the appellant’s attention by a representative of counsel for the Bank on May 27, 2004, in ample time to comply with the time limit.

[5] Second, we are not persuaded that there is any merit to the grounds of appeal sought to be raised by the appellant.

[6] Third, and importantly, although the formal judgment was not settled and issued and entered until October 21, 2004, no issues of substance remained to be resolved after the May 6, 2004 decision.

[7] Fourth, it is not clear on this record that the appellant had a settled intention to appeal within the requisite thirty days. Moreover, the length of the delay here is significant.

[8] Finally, in the circumstances of this case, the interests of justice do not warrant an extension of time.

[9] For the reasons given, the Notice of Appeal is quashed. As the Bank does not seek to cross-appeal unless the appellant’s appeal proceeds, it follows that the Bank’s request for an extension of time within which to cross-appeal is dismissed.

[10] The appellant also brought a cross-motion in this matter in which he sought an order granting him an extension of time within which to serve a fresh Notice of Appeal. Because an extension of time for the delivery of the original Notice of Appeal should not be granted for the reasons given, no extension of time should be granted for the delivery of a fresh or amended Notice of Appeal in which the appellant seeks to raise substantially the same grounds of appeal.

[11] In the result, the Bank’s motion to quash is granted and the appellant’s cross-motion is dismissed. The Bank is not seeking an award of costs concerning this proceeding. Accordingly, no costs are awarded.

Signed: “K. Feldman J.A.”

“E.A. Cronk J.A.”

“H.S. LaForme J.A.”