Court of Appeal for Ontario

CITATION: HC Matcon Inc. v. Aspden Developments Inc., 2008 ONCA 776

DATE: 20081120

DOCKET: M36971/C47883

O’CONNOR A.C.J.O.

BETWEEN:

HC MATCON INC.

Plaintiff (Appellant)

and

ASPDEN DEVELOPMENTS INC., KEVIN ASPDEN and DONNA ASPDEN

Defendants (Respondents)

Daniel Veinot for the plaintiff (appellant)

Mark Wiffen for the defendants (respondent)

Heard: November 17, 2008

ENDORSEMENT

[1] The appellant moves to extend the time to perfect the appeal. The motion is allowed on the terms set out below.

[2] While there has been a substantial delay in perfecting the appeal, none of the delay is directly attributable to the appellant. The great majority of the delay resulted from the failure of the appellant’s previous solicitor to take the steps necessary to pursue the appeal in accordance with the Rules.

[3] I accept that the appellant has had a bona fide intention to proceed with the appeal throughout. In his affidavit, the president of the appellant testified that he instructed his previous solicitor to proceed with the appeal in a timely manner. He did not instruct the solicitor to delay ordering the transcript of the trial, nor was he aware until very recently that the solicitor had not ordered the transcript for several months after filing the notice of appeal.

[4] The respondent did not file an affidavit alleging specific prejudice caused by the delay.

[5] In the result, I grant the order on the following terms:

a) The time to perfect is extended until January 15, 2009;

b) The appellant shall file a certificate that the transcript of evidence has been ordered within seven days; and

c) The appellant shall pay forthwith the respondent’s costs of this motion fixed in the amount of $2,500.

[6] I also direct that the preparation of the transcript be expedited and that the appellant pay the cost of expedition, if any, regardless of the outcome of the appeal.

[7] The respondent’s argument that the appeal should not proceed because the appellant has not obtained leave to continue this proceeding following the bankruptcy of the respondent, Donna Aspden, is best addressed on a motion to quash or on the argument of the appeal.

“D. O’Connor A.C.J.O.”