Enbridge Gas Distribution Inc. v. Froese a.k.a. Frose

[Indexed as: Enbridge Gas Distribution Inc. v. Froese]

Ontario Reports

Court of Appeal for Ontario,

Gillese J.A. (in Chambers)

March 4, 2013

114 O.R. (3d) 636 | 2013 ONCA 131

Case Summary

Civil procedure — Appeal — Leave to appeal — Extension of time — Divisional Court allowing plaintiff's appeal from decision of Small Claims Court and finding that defendant was negligent — Defendant moving for extension of time to file notice of motion for leave to appeal — Motion dismissed — Lack of merit alone may constitute sufficient basis on which to deny extension — Proposed appeal not raising arguable question of law and not involving special circumstance or matter of public importance.

The defendant failed to call for a utility locate before digging to uncover a leaking septic tank. He ruptured a gas main belonging to the plaintiff. The plaintiff brought an action in Small Claims Court to recover the cost of repairs to the gas main. The action was dismissed. The Divisional Court allowed the plaintiff's appeal. The defendant moved for an extension of time to file a notice of motion for leave to appeal.

Held, the motion for an extension should be dismissed.

Lack of merit alone can be a sufficient basis on which to deny an extension of time, particularly in cases such as this, where the moving party seeks an extension to file a notice of leave to appeal, rather than an extension of time to file a notice of appeal. The proposed appeal was largely fact based and did not raise an arguable question of law. Nor did it involve a special circumstance or matter of public importance. The defendant had not established that the justice of the case required that an extension of time be given. [page637]

Cases referred to

Sault Dock Co. v. Sault Ste. Marie (City), 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479, [1972] O.J. No. 2069, 34 D.L.R. (3d) 327 (C.A.), apld

Other cases referred to

Miller Manufacturing and Development Co. v. Alden, [1979] O.J. No. 3109, 13 C.P.C. 63 (C.A.); Rizzi v. Mavros (2007), 85 O.R. (3d) 401, [2007] O.J. No. 1783, 2007 ONCA 350, 224 O.A.C. 293, 157 A.C.W.S. (3d) 9

MOTION for an extension of time to file a notice of motion for leave to appeal the order of the Divisional Court (DiTomaso J.), [2012] O.J. No. 5361, 2012 ONSC 6437 (Div. Ct.).

Peter B. Cozzi, for moving party.

Jennifer Heath, for responding party.

GILLESE J.A. (in Chambers):

The Motion Before the Court

[1] David Froese a.k.a. David Frose ("Mr. Froese" or the "moving party") wants to appeal the order of the Divisional Court dated November 14, 2012 (the "order"). He does not have a right to such an appeal, as leave to appeal is required.

[2] As a first step in the process, Mr. Froese has to file a notice of motion for leave to appeal to this court (the "notice"). The deadline for filing the notice has passed. Consequently, he brings a motion, in writing, seeking an extension of time to file the notice.

Background

[3] Mr. Froese is a contractor, a long-time property maintenance manager at a small landscaping business and a friend of Mr. Massey.

[4] In November of 2008, Mr. Massey called Mr. Froese and asked for his help. The septic tank system at his property in Holland Landing, Ontario (the "property") was leaking and causing a sewage backup into his home.

[5] Mr. Froese agreed to help. He went to the property and spoke with Mr. Massey and a neighbour about the lot line, specifically where the property line ended. It appears that he made these inquiries because he believed that gas pipes are not located on private property. On that assumption, so long as he dug only on private property, he thought he could not hit a gas pipe.

[6] Mr. Froese also visually inspected the utility lands and, digging by hand, located the septic pipe coming from the tank leading to the header pipe. [page638]

[7] Mr. Froese then began using a mini-excavator to uncover the leaking septic tank. After digging out two or three scoops of soil, he heard a loud rush of air. He had ruptured a gas main belonging to Enbridge Gas distribution Inc. ("Enbridge").

[8] Mr. Froese did not call for a utility locate before digging, a fact that he acknowledged before trial.

[9] Enbridge brought an action in Small Claims Court in which it sought to recover from Mr. Froese the cost of repairs to the gas main. Its claim was framed in negligence. The amount of the claim was $7,144.65.

[10] At trial, Mr. Froese admitted that he failed to call for a locate and that a locate could have prevented the incident.

[11] At first instance, Enbridge lost. The trial judge held that Mr. Froese was not negligent. He assessed Enbridge's damages at $4,831.30.

[12] Enbridge appealed only the question of liability to the Divisional Court. It was successful.

[13] In a decision dated November 14, 2012, DiTomaso J. of the Divisional Court found that the trial judge erred in fact and in law (the "decision".) He held that the trial judge made a palpable and overriding error when he found that a utility locate call would not have avoided the incident. He further held that "but for" Mr. Froese's failure to make the utility locate call, the incident would never have occurred.

The Issue

[14] This motion raises a single issue: ought the court grant an extension of time to file the notice?

Analysis

The test for extending time

[15] The test on a motion to extend time is well settled. The overarching principle is whether the "justice of the case" requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including

(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;

(b) the length of, and explanation for, the delay in filing;

(c) any prejudice to the responding parties caused, perpetuated or exacerbated by the delay; and [page639]

(d) the merits of the proposed appeal.

See Rizzi v. Mavros (2007), 2007 ONCA 350, 85 O.R. (3d) 401, [2007] O.J. No. 1783 (C.A.).

[16] In my view, lack of merit alone can be a sufficient basis on which to deny an extension of time, particularly in cases such as this where the moving party seeks an extension to file a notice of leave to appeal, rather than an extension of time to file a notice of appeal: see Miller Manufacturing and Development Co. v. Alden, [1979] O.J. No. 3109, 13 C.P.C. 63 (C.A.), at para. 6.

The principles applied

[17] The focus of the submissions of both parties was on the merits of the proposed appeal. Although the record contains very little on the length of the delay and reasons therefore, it is clear that the moving party had the requisite intention and attempted to file within time. Further, I see nothing in the record to suggest that Enbridge will suffer prejudice, apart from the inevitable cost associated with permitting the litigation to carry on. Accordingly, I will say nothing more on those matters.

[18] I turn, therefore, to a consideration of the merits of the proposed appeal.

[19] It is important to begin this discussion by recalling that the decision which the moving party seeks to appeal is one rendered by the Divisional Court exercising its appellate jurisdiction. In Sault Dock Co. v. Sault Ste. Marie (City), 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479, [1972] O.J. No. 2069 (C.A.), at para. 7, this court explained that, as a general rule, such decisions of the Divisional Court are intended to be final. A review of such a decision, by the Court of Appeal, is an exception to this general rule.

[20] Before granting leave, this court must be satisfied that the proposed appeal presents an arguable question of law, or mixed law and fact, requiring consideration of matters such as the interpretation of legislation; the interpretation, clarification or propounding of some general rule or principle of law; the interpretation of a municipal by-law where the point in issue is a question of public importance; or the interpretation of an agreement where the point in issue involves a question of public importance: see Sault Dock Co., at para. 8.

[21] At para. 9 of Sault Dock Co., the court adds that it will also consider cases where special circumstances make the matter sought to be brought before it a matter of public importance or would where it appears that the interests of justice require that leave should be granted. [page640]

[22] Finally, at para. 10 of Sault Dock Co., this court observes that there may be cases in which there is clearly an error in the judgment or order of the Divisional Court such that the Court of Appeal might grant leave to correct the error.

[23] If Mr. Froese were given leave to appeal, he would argue that the trial judge's decision was correct in law and fact. He would contend that the Divisional Court erred by effectively retrying the case and substituting its findings of fact for those of the trial judge. He would further contend that the Divisional Court made factual errors relating to such things as the likely accuracy of the utility locate and the location of the damaged gas pipeline.

[24] In my view, the proposed appeal is largely fact based. I do not see that it raises an arguable question of law, and certainly not one of the sort contemplated by para. 8 of Sault Dock Co. Nor does the purported appeal involve a special circumstance or a matter of public importance. The questions it would raise are of importance only to the parties, not to the public generally. Furthermore, I see nothing in the purported factual errors.

[25] Accordingly, the moving party has not established that the justice of the case requires that an extension of time for filing of the notice should be given.

Disposition

[26] For these reasons, the motion is dismissed. If the parties are unable to resolve the matter of costs, they may make brief written submissions on the same within ten days of the date of release of these reasons.

Motion dismissed.

End of Document