COURT OF APPEAL FOR ONTARIO

CITATION: Toronto-Dominion Bank v. Bolus, 2014 ONCA 238

DATE: 20140327

DOCKET: M43466

Hoy A.C.J.O. (In Chambers)

BETWEEN

The Toronto Dominion Bank

Plaintiff (Respondent)

and

Kathleen Emma Bolus also known as Kathleen E. Romand

Defendant (Appellant)

Jayson W. Thomas, for the defendant (appellant)

Nicole Brown Dunbar, for the plaintiff (respondent)

Heard: March 24, 2014

ENDORSEMENT

[1] On November 15, 2013, the motion judge granted summary judgment in favour of The Toronto Dominion Bank (the “Bank”) for payment of amounts Kathleen Bolus owed it on a line of credit, secured by a mortgage on her home. The motion judge also summarily dismissed Ms. Bolus’ counterclaim against the Bank for breach of fiduciary duty.

[2] Ms. Bolus seeks an order extending the time to file a Notice of Appeal of the November 15, 2013 judgment, to the extent it dismisses her counterclaim against the Bank for breach of fiduciary duty. She does not seek to otherwise appeal the judgment against her.

[3] The following factors are relevant on a motion to extend time to file a notice of appeal: (1) whether the appellant formed an intention to appeal within the relevant time period; (2) the length of, and explanation for, the delay; (3) the prejudice to the respondent; (4) the merits of the appeal; and (5) whether the “justice of the case” requires it: Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5^th) 35 (C.A.).

[4] I deal with them in turn.

[5] The only evidence as to the first factor – whether Ms. Bolus formed an intention to appeal within the relevant period – is Ms. Bolus’ own evidence. She did not provide an affidavit of her lawyer on the summary judgment motion, Mr. Barnwell, who, she says, “advised me that I should appeal the Judgment but he did not want to pursue the appeal himself.” In and around the same time period, Mr. Barnwall filed a Notice of Appeal of another judgment against Ms. Bolus, and he remained on record as her counsel in this matter until at least February 3, 2014. In her reasons, the summary judgment motion judge noted that Ms. Bolus had failed to disclose a $150,000 second mortgage when applying to the Bank for an increase in her line of credit. The judge also found that Ms. Bolus’ assertion that the Bank had encouraged her to increase her level of indebtedness was inconsistent with the documentary evidence. Given these findings going to Ms. Bolus’ credibility, and Mr. Barnwall’s involvement at the relevant time, more than Ms. Bolus’ own assertion that she intended to appeal within the relevant time period is required.

[6] As to the second factor – the length of, and explanation for, the delay – Ms. Bolus’ current counsel, Mr. Thomas, contacted counsel for the Bank on February 10, 2014 to schedule this motion. Thereafter, some delay ensued in scheduling this motion because the Bank took the position that Mr. Barnwall was still on the record, and it therefore could not deal with Mr. Thomas. The Bank’s counsel’s planned holidays caused further delay. Without resistance from the Bank, Mr. Thomas argues that the relevant period of delay is therefore from December 16, 2013 until February 10, 2014.

[7] Ms. Bolus is a 73 year old widow who suffers from a number of medical conditions, including anxiety and depression. She provides full-time care to her adult, autistic son.

[8] Ms. Bolus says she was not aware of the 30-day time limit until after the expiry of the 30-day period. She explains that she relied on an internet article that indicated that appeals must be filed “30 to 90 days after the judgment is entered and notice given” and instructed readers to “[c]heck with the clerk’s office or the self-help center to figure out the deadline.” However, she did not check with the clerk’s office or self-help center to determine what the appeal period was.

[9] Ms. Bolus also explains that her autistic son went missing for a period of six hours on December 9, 2013, and that it took her nearly a month to recover sufficiently from the devastating effect this incident had on her to resume her search for a lawyer. She succeeded in retaining Mr. Thomas on February 6, 2014. She provides no details of efforts made to retain other counsel.

[10] While, on its face, Ms. Bolus’ failure to follow up, as directed by the article on which she says she relied, to verify the appeal period is not reasonable, her mental health and the burden of caring for her son in my view provide a sufficient explanation for the delay.

[11] The third factor does not militate against granting this motion: the Bank does not argue that it would suffer prejudice if the extension were granted.

[12] The fourth factor – the merits of the appeal – is, however, determinative of this motion. This factor requires that I consider the merits of the appeal, not with a view to determining whether the appeal will succeed, but to determine whether it has so little merit that the court could reasonably deny the important right of an appeal: see Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 10.

[13] I am satisfied that the appeal is wholly without merit, and that the requested extension should accordingly not be granted.

[14] Ms. Bolus went to the Bank to increase her already sizeable line of credit in order to consolidate her other debts. At that point, her payments to the Bank and her other creditors exceeded her monthly income. The Bank declined her request for further credit due to her poor credit rating, and offered to refer her to an alternative lender.

[15] Ms. Bolus signed a form authorizing the Bank to provide information to prospective lenders. In that form, Ms. Bolus agreed that the Bank could receive a referral fee, and agreed to indemnify the Bank for any damages and costs the Bank might sustain as a result of the referral. Ms. Bolus succeeded in securing a second mortgage, with Stormy Daze Investments Ltd., which permitted her to pay off her existing second mortgage and consolidate her debts. The Bank received a modest referral fee. Ms. Bolus subsequently defaulted on her line of credit to the Bank and the second mortgage.

[16] Ms. Bolus argues that the Bank owed her a fiduciary duty, and breached that duty by referring her to an alternative lender, and “set her up” to fail. The summary motion judge concluded that there was no evidence to support Ms. Bolus’ assertion that the Bank owed her a fiduciary duty. I agree. Moreover, there was evidence that the debt consolidation benefitted Ms. Bolus.

[17] Given that the appeal is without merit, the interests of justice do not require that an extension of time to file the appeal be granted.

[18] This motion is accordingly dismissed.

[19] The Bank shall be entitled to costs of the motion, in the amount of $3,500, inclusive of disbursements and HST.

“Alexandra Hoy A.C.J.O.”