CITATION: Monteith v. Monteith, 2010 ONCA 78
DATE: 20100120
DOCKET: (C51050) M38244
COURT OF APPEAL FOR ONTARIO
MacPherson J.A. (In Chambers)
IN THE MATTER OF THE ESTATE OF GEORGE E. MONTEITH
BETWEEN:
Robert George Monteith
Appellant
and
Donald Graham Monteith
Respondent
J. Waldo Baerg, for the appellant/moving party
Lisa N. Gunn, for the respondent/responding party
Heard: January 16, 2010 (in writing)
Motion to extend time to perfect the appeal.
MacPherson J.A. (In Chambers):
A. INTRODUCTION
[1] The appellant/moving party Robert Monteith seeks an order granting an extension of time to February 19, 2010 to perfect his appeal from the orders of Tausendfreund J. dated August 11, 2009 and October 21, 2009.
B. FACTS
[2] In a judgment dated August 11, 2009, Tausendfreund J. ordered the removal of Robert Monteith as an estate trustee of the estate of George Monteith and ordered the continuation of Donald Monteith as the sole estate trustee.
[3] On September 10, 2009, the appellant filed a Notice of Appeal.
[4] On October 21, 2009, Tausendfreund J. made a costs order of $35,000 in favour of the respondent. The appellant appealed that order as well.
[5] On October 26, 2009, the registrar sent a notice of intent to dismiss for delay (NIDD) to the appellant, setting November 17, 2009, as the deadline to perfect his appeal. On November 18, 2009, when the appellant was informed of the perfection deadline in person, he informed the registrar that he did not receive the NIDD because his mail was being forwarded to Montreal. The registrar allowed the appellant until November 27, 2009, to either perfect his appeal or serve and file his motion to extend. At no time did the registrar actually dismiss the appeal for delay.
[6] On November 25, 2009, the registrar received the appellant’s notice of motion for an order granting an extension of time to perfect the appeal, dated November 20, 2009, and served on the respondent’s counsel on November 23, 2009. Under the heading “Grounds for the Motion”, the appellant explained and requested as follows:
Notice of the impending deadline of November 17, 2009, (dated October 26, 2009), was sent to the wrong address, and never received.
An active effort to retain counsel to perfect the Appeal has so far not been successful, and a vigorous search for legal assistance in this regard continues.
As 2 months of interviews has as yet proved fruitless, I request that no date for the deadline be assigned, as firstly counsel must be retained, then time spent on research and preparation of the documents to perfect the appeal.
As soon as counsel is retained, we will advise the Court, and propose a date for completion of perfecting the appeal.
[7] On January 11, 2010, the appellant retained J. Waldo Baerg as his counsel and Mr. Baerg filed a Supplementary Notice of Motion requesting an order extending the time to perfect the appeal to a specific date, namely February 19, 2010.
C. ISSUE
[8] The sole issue on the appeal is whether an order should be made extending the time to perfect the appeal to February 19, 2010.
D. ANALYSIS
(1) Preliminary point
[9] The respondent submits that in his motion the appellant has not sought to set aside the registrar’s order dismissing the appeal for delay. As the respondent asserts, “[u]nless this Order is set aside, the relief requested by the appellant is meaningless.”
[10] In fact, the registrar never dismissed the appeal for failure to perfect. In keeping with the registrar’s usual protocol, the registrar allowed some leeway for the appellant to perfect his appeal after the deadline on November 17, 2009, rather than dismiss the appeal as a matter of course. On November 18, 2009, the appellant informed the registrar that he did not receive their notice of the impending deadline. In light of this, the registrar allowed the appellant ten extra days to file his motion to extend. The appellant filed his motion ahead of the deadline.
(2) The merits
[11] In my view, the test for extending the time for perfecting an appeal should be similar to the test for extending the time for filing a notice of appeal. In Rizzi v. Mavros (2007), 2007 ONCA 350, 85 O.R. (3d) 401 (C.A.) at para. 16, Gillese J.A. listed five factors:
(1) whether the … appellant formed an intention to appeal within the relevant period;
(2) the length of the delay and explanation for the delay;
(3) any prejudice to the respondent;
(4) the merits of the appeal; and
(5) whether the “justice of the case” requires it.
[12] The first of these factors is not relevant on this motion because the appellant filed his Notice of Appeal in a timely fashion. Accordingly, I will consider the other four factors from Rizzi v. Mavros.
(a) The length of delay and explanation for it
[13] The appellant proposes a perfection date of February 19, 2010, which is slightly more than a month after he retained counsel and three months after the registrar put him on notice about his appeal. The reason for this delay, apparent form the record, and in particular from the appellant’s original Notice of Motion prepared by himself, is that he was having difficulty retaining a lawyer. He has now succeeded on this front and his counsel has moved with dispatch and proposes, through the suggested perfection date of February 19, 2010, to continue to do so. In these circumstances, the delay in perfection will be relatively brief and the explanation for the delay strikes me as reasonable.
(b) Prejudice to the respondent
[14] Delay in court proceedings always encompasses some prejudice. In this case, the settlement of an estate will be delayed. However, the respondent does not assert any specific prejudice if the motion is granted. The delay is brief.
(c) The merits of the appeal
[15] The appellant has not provided any evidence or argument about the merits of the appeal.
[16] In the original Notice of Appeal, prepared by the appellant himself, the following is found:
THE GROUNDS OF APPEAL are as follows: No notice was received prior to the hearing by the appellant from either Gunn & Associates or Ledroit-Becket therefore impeding preparation of a suitable defence for this action.
[17] However, the formal Judgement of Tausendfreund J. records, inter alia, “hearing the submissions of … the self-represented Respondent”.
[18] In addition, I note that the appellant has not provided the reasons, if any, of Tausendfreund J.
[19] This factor tells in favour of the respondent.
(d) The “justice of the case”
[20] In a sense, this is an ‘umbrella’ factor, requiring the motion judge to step back, balance the preceding factors, and consider any other factor that might be relevant in the particular circumstances of the appeal.
[21] In this case, the appellant was self-represented in the early stages of his appeal. He filed a timely Notice of Appeal. When he did not follow through and perfect his appeal in compliance with the rules and discovered that his appeal was in danger of being dismissed for delay, he moved quickly with this motion. Importantly, he has now retained counsel. This counsel has moved with dispatch; he did not seek an adjournment of the motion even though it was scheduled only four days after his retainer, he responded to it, and he proposes an early date, February 19, 2010, for perfection of the appeal. In these circumstances, the balancing of the factors and the “justice of the case” point towards a disposition that permits the appeal to be heard on the merits sometime this spring.
E. DISPOSITION
[22] The motion is granted. The appellant is given to February 19, 2010 to perfect his appeal.
[23] The appellant seeks his costs of the motion on the basis that the respondent unreasonably withheld his consent to a motion reasonably brought. I disagree. This is a close call. I have, in effect, granted the appellant an indulgence so that the appeal can be heard and determined on the merits. Accordingly, each party should bear its own costs.
RELEASED: January 20, 2010 (“J.C.M.”)
“J.C. MacPherson J.A.”