COURT OF APPEAL FOR ONTARIO

CITATION: Kirby v. Hope Place Centres, 2013 ONCA 459

DATE: 20130704

DOCKET: M42201 (M42084)

MacPherson, Rouleau and Lauwers JJ.A.

BETWEEN

Dorothy Kirby

Plaintiff (Appellant)

and

Hope Place Centres

Defendant (Respondent)

Dorothy Kirby, acting in person

Ron Craigen, for the respondent

Heard: July 3, 2013

Motion for an order varying the February 13, 2013 order of Justice Karen Weiler of the Court of Appeal for Ontario.

ENDORSEMENT

MacPherson and Rouleau JJ.A.

[1] The appellant, Dorothy Kirby, brings this motion to set aside the decision of Weiler J.A. of this court dated February 13, 2013. In that decision, Weiler J.A. dismissed the appellant’s motion for leave to extend time to file a notice of appeal from the Order of Murray J. of the Superior Court of Justice dated June 7, 2012, which Order dismissed the appellant’s motion to set aside the Order of Gray J. of the Superior Court of Justice dated August 17, 2011.

[2] The appellant concedes that Weiler J.A. accurately stated the test for extending time to file a notice of appeal. However, the appellant asserts that Weiler J.A. misapplied the test in several respects.

[3] The appellant contends that Weiler J.A. did not consider the prejudice to the appellant if an extension of time were not granted. The appellant describes this prejudice as “extreme” because her civil action will not proceed.

[4] The test for granting an extension of time includes prejudice to the respondent as a factor. Weiler J.A. explicitly considered this factor; indeed she found it favoured the appellant, concluding that “there is no prejudice to the respondent”. There was no need for Weiler J.A. to go further and find that the appellant would be prejudiced if the motion were dismissed; this “extreme” consequence is the common result in every case in which an extension of time is not granted.

[5] The appellant also asserts that Weiler J.A. ignored the justice of the case factor. We disagree. Although Weiler J.A. did not specifically mention this factor, it is obvious that her consideration and balancing (because the appellant was successful on the prejudice factor) of the other four factors was directed precisely at the justice of the case in the motion before her.

[6] The appellant proposes to introduce fresh evidence, much of which is directed at showing that her appeal has merit. In our view, this evidence does not meet the test for admission and is, therefore, not admitted.

[7] The motion is dismissed. The respondent is entitled to its costs of the motion fixed at $2000, inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“Paul Rouleau J.A.”

Lauwers J.A. (dissenting):

[8] The legal system does not deal well with people who are suffering from mental health issues, especially those who are self-represented. Fair access to justice can be a real problem for them. They sometimes require an unusually high level of judicial direction and assistance, including indulgences. Where there is evidence that an appellant has substantial mental health issues, as is shown in this case by the material in the record and the fresh evidence, it would, in my view, be appropriate to temper the elements in the ordinary tests somewhat in the interests of the justice of the case. The elements of the test at issue, in this case whether an extension of time to file a notice of appeal should be granted by the court, ought to be read through a mental health lens, with special focus on the actual prejudice to the responding party of granting the relief sought. I agree with the chambers judge that, on this record, there would be no real prejudice to the respondent if the appellant were given an extension of time to file the notice of appeal; I would therefore allow the fresh evidence motion and the appeal from the chambers judge, but would also impose peremptory orders on the appellant to move the appeal along.

“P. Lauwers J.A.”