Court of Appeal for Ontario

Citation: Grand Financial Management Inc. v. Solemio Transportation Inc., 2014 ONCA 829

Date: 2014-11-21

Docket: M44252 (C58867)

Before: Sharpe, Rouleau and Pardu JJ.A.

Between:

Grand Financial Management Inc. Plaintiff (Respondent)

and

Solemio Transportation Inc., Samu Ullah and Arnold Bros. Transport Ltd. Defendants (Appellants)

Counsel: Tim Gleason and Rebecca Liu, for the appellants Terry Corsianos, for the respondent

Heard: November 18, 2014

On a motion for a review of the order of Benotto J.A., dated July 24, 2014 dismissing a motion to extend the time for filing a notice of appeal.

ENDORSEMENT

[1] We agree with the moving party that the motion judge erred in refusing to grant an extension of time for filing the notice of appeal.

[2] In our view, the motion judge erred in finding there was no proper evidence that the moving party had formed an intention to appeal before the expiry of the appeal period. The moving party’s solicitor swore an affidavit to the effect that upon receipt of the trial judgment, the moving party had instructed him to appeal immediately. While that may have been hearsay evidence, it was admissible on this motion.

[3] The respondent offered no evidence or suggestion of prejudice. This case can be readily distinguished from Marché D’Alimentation Denis Theriault Ltée v. Giant Tiger (2007), 2007 ONCA 695, 87 O.R. (3d) 660. The delay in this case was short, there was an explanation for the delay and the situation was not one where prejudice could be inferred from the mere fact of that short delay.

[4] Finally, we are of the view that the proposed appeal has sufficient merit to warrant an extension of time. It is arguable that the trial judge allowed the claim on the basis of an agreement that was not pleaded and for which the limitation period may have expired. We cannot say that the appeal is devoid of merit so as not to warrant an extension of time.

[5] Accordingly, we set aside the order of the motion judge dated July 24, 2014 and in its place, grant the order extending the time to file a notice to appeal to November 28, 2014.

[6] The moving party is entitled to its costs fixed in the amount of $6,000 inclusive of disbursements and taxes, payable in the cause.

“Robert J. Sharpe J.A.”

“Paul Rouleau J.A.”

“G. Pardu J.A.”