COURT OF APPEAL FOR ONTARIO

CITATION: Leighton v. Best, 2014 ONCA 667

DATE: 20140926

DOCKET: M43926

Weiler J.A. (In Chambers)

BETWEEN

Randy Leighton and Denise Leighton

Moving Parties

and

Matthew Best

Responding Party

Ashlee L. Barber, for the moving parties

Robert Kerr, for the responding party

Heard: September 19, 2014

Motion for an order to extend the time to appeal from the order of Justice James A.S. Wilcox of the Superior Court of Justice dated September 13, 2013.

Weiler J.A.:

Introduction

[1] The issue on this motion is whether Leighton’s[^1] time to serve and file a notice of appeal should be extended. The test on such a motion is well-settled: Howard v. Martin, 2014 ONCA 309, 42 R.F.L. (7th) 47, at para. 26. It is whether the justice of the case requires that the extension be granted having regard to the circumstances of the particular case and all relevant considerations including: 1) whether the moving party formed a bona fide intention to appeal during the time permitted for an appeal; 2) the length of the delay and the explanation for the delay; 3) the merits of the proposed appeal; and 4) any prejudice to the responding party. (The order in which the third and fourth factors are considered is sometimes reversed.)

Facts

[2] A brief summary of the facts as found by the trial judge will be of assistance. During a gentleman’s hockey game, Randy Leighton highsticked Matthew Best, causing Best’s face to bleed. When the referee stopped play, an altercation ensued. In retaliation for the high stick, Best removed Leighton’s hockey helmet and punched Leighton with such force that he broke Leighton’s jaw in three places and caused him to fall to his knees. The trial judge concluded that:

Best exceeded the scope of the implied consent [to physical contact] by removing Leighton’s helmet to land a punch of such force that there must have been an intention to injure or at least recklessness as to the consequences of such a hard blow.

[3] Based on his findings, the trial judge held Best civilly liable to Leighton for damages for injuries sustained as a result of the punch: Leighton v. Best, 2009 CanLII 25972 (ON SC). Best did not appeal the decision.

[4] Leighton commenced garnishment proceedings against Best and received funds between September 2010 and August 2011. In September 2011, Best made an assignment in bankruptcy, which resulted in a stay of the garnishment proceedings.

[5] Leighton brought a motion for a declaration that his award of damages would survive Best’s discharge from bankruptcy pursuant to s. 178(1)(a.1)(i) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“BIA”), because it was the result of bodily harm that was intentionally inflicted.

[6] The motion judge dismissed Best’s motion on September 13, 2013. It is this decision that Leighton seeks an extension of time to appeal. The reason is that in the intervening period, the legal landscape has changed. In dismissing Best’s motion, the motion judge relied on Dickerson v. 1610396 Ontario Inc., 2013 ONSC 403, 98 C.B.R. (5th) 40. In that case, the motion judge held that although the defendant had intended to apply force to the plaintiff by punching him, that did not mean he intended to injure the plaintiff as required under s. 178(1)(a.1) of the BIA. On October 31, 2013, the Court of Appeal reversed the decision at first instance in Dickerson and held that where there is direct proof of intentional infliction of harm or where such intent can be reasonably inferred on the facts, s. 178(1)(a.1)(i) will apply. See Dickerson v. 1610396 Ontario Inc., 2013 ONCA 653, 369 D.L.R. (4th) 738. The court added, at para. 40, that “[i]n all the reported cases of assault, the section was found to apply.”

[7] Leighton’s affidavit filed in support of this motion is to the effect that on October 31, 2013, his counsel, Rachel Leck, brought the Court of Appeal’s decision to his attention and he instructed her to appeal. On the same day, she wrote to the motion judge, copying Best’s counsel, and asked him to reconsider his decision as the order dismissing the motion had not yet been issued and entered. The motion judge refused to do so on November 19, 2013. That same day, Leighton’s counsel asked Best’s counsel to consent to the late filing of the notice of appeal. On December 23, 2013, Best refused.

[8] This notice of motion requesting an extension of time was not brought until June 16, 2014. On August 12, 2014, the motion was adjourned to permit Leighton to file further and better material in support of the motion and counsel for Best was given the opportunity to cross-examine if he so desired. No cross-examinations have occurred.

Application of the Test

[9] Leighton concedes he did not intend to appeal within the prescribed time period. However, when Leighton heard of the Court of Appeal’s decision in Dickerson from his lawyer about two weeks after the appeal period had expired, he acted promptly and instructed his lawyer to appeal. In Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401, a delay of 15 months in forming an intention to appeal was accepted on the basis that prior to the release of the Supreme Court of Canada’s decision in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, conflicting appellate authority on causation made success on appeal very uncertain. In this case, success on appeal appeared to be unlikely until the Dickerson decision was reversed. The delay respecting intention to appeal is short.

[10] Insofar as the length of the delay in seeking an extension of time to appeal and an explanation for the delay are concerned, Leighton simply says that he “left the matter in the hands of his lawyer to take whatever steps [were] necessary.”

[11] Leighton’s lawyer has sworn an affidavit that addresses her delay in waiting until June 2014 to bring this motion. She advises that in the summer of 2013, her husband suffered “from a serious health problem that required a brief period of hospitalization and regular and ongoing treatment.” She states that managing all the household responsibilities, raising her children and concern for her husband’s health took an emotional and physical toll on her. Yet she did not take a leave of absence from work. She states, however, “I was in the office less frequently between the fall of 2013 to the present and was distracted by my situation at home which caused me to be less vigilant following up with matters in the workplace.”

[12] Best’s counsel submits that Leighton’s counsel is not a sole practitioner and could have assigned the file to someone else in her office because it was time sensitive.

[13] The steps Leighton’s counsel took until December 23, 2013, are a satisfactory explanation for the delay until that date. I am not satisfied with the explanation for the delay for the first six months of this year. Leck was actively engaged on the file for some six months after her husband’s illness and, if the cumulative effect of her responsibilities was overwhelming, I agree that she ought to have transferred the file within the office.

[14] The failure of Leighton’s counsel to provide a satisfactory explanation for the delay is not necessarily fatal in itself, however, because in deciding whether the overall justice of the case requires that leave be granted, consideration must be given to all of the factors. In Howard, Gillese J.A. commented, at para. 36, “The merits of a proposed appeal can be decisive on a motion to extend the time for filing. Even if the other factors militate against extending time, the merits may be so significant as to justify extending time.”

[15] In this case, the motion judge stated, at para. 20 of his reasons, “I find the Dickerson case and the present case to be similar in important aspects…. In both, the punches were intentional”. The merits of appeal are strong.

[16] Best submits that he suffers prejudice by being deprived of a timely discharge from bankruptcy. He states, “The fundamental policy of the bankruptcy regime is to relieve a debtor of an insupportable burden of debt and allow [him] to return to a productive economic life.” Best’s prescribed period of bankruptcy was 21 months. It has now reached 36 months and will continue if the motion is allowed. The incident giving rise to the civil judgment took place more than 10 years ago and Best submits he should be permitted to move forward with his life.

[17] Leighton submits that Best is not prejudiced by the delay because he has known since shortly after the Court of Appeal’s decision reversing Dickerson that Leighton was seeking to have the motion judge’s decision reconsidered or appealed. The parties had their day in court. Enforcement of Leighton’s judgment, which he submits is in accordance with the policy in s. 178(1)(1.a)(i) of the BIA, should not be thwarted because the legal landscape changed only after the appeal period had expired and the total delay here is about the same as in Resurfice.

[18] I agree that the prejudice to Best from being unable to obtain an earlier complete discharge should not prevent an extension from being granted. Overall, I am of the opinion that it is in the interest of justice to extend the time to file a notice of appeal. The motion is allowed. Leighton shall have five days from the release of these reasons to file a notice of appeal.

[19] Although Leighton has been successful on this motion, he has received an indulgence from the court. Consequently, Leighton is ordered to pay costs to Best fixed in the amount of $1500 inclusive of all disbursements and applicable taxes.

Released: September 26, 2014

“KMW” “K.M. Weiler J.A.”

[^1]: Although the applicants are Randy Leighton and his wife, Denise Leighton, I will refer to them collectively and individually as Leighton.