Court of Appeal for Ontario

Date: 2017-02-21 Docket: M47455 (C63020) Pardu J.A. (In Chambers)

Parties

Between

Manorama Sennek Applicant (Appellant)

and

Carleton Condominium Corporation No. 116 Respondent

Counsel

Manorama Sennek, acting in person

Allison J. Klymyshyn and James M. Butson, for the respondent

Heard: February 10, 2017

Endorsement

[1] The moving party, Manorama Sennek, moves for an extension of time within which to perfect her appeal to this court. Underlying her proposed appeal is an application disputing condominium fees and liens filed by the respondent.

[2] I am satisfied that she has provided a reasonable explanation for the delay. The delay is not long, and she indicates that she only requires a further two weeks to perfect the appeal. There is no prejudice to the respondent from the delay.

[3] However, the respondent on the motion submits that the order from which the moving party wishes to appeal is interlocutory, that this court does not have jurisdiction to hear the appeal and that, accordingly, the "justice of the case" does not require an extension to perfect the appeal.

[4] To determine to grant an extension, the court should take into account all the considerations that are relevant in the circumstances of the case, including:

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

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

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

(d) the merits of the proposed appeal.

See Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. None of these factors is determinative. The "governing principle" is whether, on the facts, the "justice of the case" requires an extension: see Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401 (C.A.), at para. 17.

[5] When the moving party brought her underlying application, the respondent raised concerns about the moving party's mental health and sought an order under s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43, for a mental examination of the moving party by a health practitioner. The respondent's original lien claim was only $763.14, but its legal costs by the time of the application were over $18,000.00. The respondent was concerned that a litigation guardian should be appointed for the moving party.

[6] Kershman J. made an order on March 15, 2016 that an assessor, as defined in s. 1(1) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, and as chosen by the moving party, assess the moving party's mental condition and advise as to her mental competence to understand information related to litigation decisions and to appreciate the consequences of decisions on her part in litigation. The order went on to allow the respondent to name the assessor if the moving party failed to do so and that she was to bear the costs of the assessment.

[7] The moving party sought leave to appeal from this order to the Divisional Court, which was refused by Beaudoin J. on August 2, 2016: see 2016 ONSC 4818.

[8] The moving party did not comply with the order and the respondent brought contempt proceedings. Roger J. indicated that he had a reasonable doubt about whether the moving party's breaches of the order of Kershman J. were deliberate and wilful because of the "live issue" over her capacity. Roger J. ordered the moving party to comply with Kershman J.'s order and ordered her to appear before a specified health practitioner at a specified time and place so that her capacity could be assessed. He also ordered that "should the Applicant fail to comply with and/or breach any term of this order, CCC 116 may bring a motion with notice to the Applicant and counsel for her mortgagee to dismiss this proceeding and the Small Claims Action, with CCC 116's costs."

[9] The moving party's notice of appeal indicates that she appeals from the "order of Judge Roger dated the 21st day of October 2016 (and the Order of Judge Kershman dated the 15th day of March 2015 incorporated by reference therein)."

[10] Section 6(1)(b) of the Courts of Justice Act provides that an appeal lies to the Court of Appeal from a final order of a judge of the Superior Court of Justice.

[11] The distinction between a final and interlocutory order was expressed in this court's decision in Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), at pp. 678:

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined.

[12] The court approved of the following test for determining whether an order is final or interlocutory, at p. 680:

It seems to me that the real test for determining this question ought to be this. Does the judgment or order as made finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order, but if it does not it is then, in my opinion, an interlocutory order.

[13] The characterization of an order as final or interlocutory is determined by the order's legal nature, rather than the particular circumstances of the plaintiff or defendant who is affected by the order. As Morden A.C.J.O. explained in Laurentian Plaza Corp. v. Martin, 7 O.R. (3d) 111 (C.A.), at p. 116:

The question of categorization which determines access to appellate review must be decided on the basis of the legal nature of the order and not on a case by case basis depending on the application of the order to the facts of a particular case. As I have indicated, jurisdictional rules should be as clear as possible and their application should not be beset with factual disputes which themselves may be protracted and difficult to resolve.

[14] In circumstances analogous to those of the present case, this court has characterized an order requiring the plaintiff to appoint a litigation guardian, and requiring the litigation guardian to appoint counsel to represent the plaintiff, as interlocutory: see Willmot v. Benton, 2011 ONCA 104, 11 C.P.C. (7th) 219. The order provided that if those steps were not taken within thirty days, the defendants could move without further notice to strike out the plaintiff's pleadings and seek dismissal of the action. The court wrote at para. 3 that the "primary aspect of the order requiring the plaintiff to appoint a litigation guardian and counsel is procedural in nature and does not finally resolve an issue that goes to the merit or substance of this litigation."

[15] A sanction for non-compliance of an interlocutory order does not alter the legal nature of the order. As Sharpe J.A. observed in Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642, 97 O.R. (3d) 161, at para. 26:

I recognize that failure to satisfy an order for security for costs may lead to a dismissal of the claim, but the sanction for non-compliance with an order cannot alter the nature of the order itself. Many procedural or interlocutory orders – for particulars, for production of documents, for the payment of costs ordered in interlocutory proceedings – may carry the ultimate sanction of dismissal of the non-complying party's claim. But if the claim is dismissed, the dismissal flows from the party's failure to comply with the interlocutory or procedural order, not from the order itself, and does not alter the interlocutory or procedural nature of the order that led to dismissal.

[16] Based on these authorities, I am satisfied that the order of Roger J. is interlocutory and that an appeal from it properly lies to the Divisional Court.

[17] Given that conclusion, the choice to be made is whether to extend the time to perfect this appeal, and leave the respondent to bring a motion to quash the appeal for lack of jurisdiction, or to refuse to grant an extension to perfect the appeal. Juriansz J.A. chose the latter course in Henderson v. Henderson, 2014 ONCA 571, 325 O.A.C. 138, at para. 8, but every decision as to whether the "justice of the case" requires an extension is highly fact specific.

[18] In the end, given the enormous costs that have been incurred in this action, relative to the amounts in issue, I have concluded that it would not be proportionate or in the interests of either party for these proceedings to be prolonged or for further costs to be incurred when a decision quashing the appeal for want of jurisdiction seems inevitable. This appeal should have been brought to the Divisional Court, and any necessary motion to extend the time to appeal should have been brought before that court. The court's assessment of the "justice of the case" for the purpose of granting an extension in these circumstances must take into account the express inclusion in r. 1.04(1.1) of the Rules of Civil Procedure, R.R.O. Reg. 194, of the principle that "the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding." See also Abrams v. Abrams, 2010 ONSC 2703, 102 O.R. (3d) 635, at paras. 66-70, leave to appeal to Div. Ct. refused, 2010 ONSC 4714 (Div. Ct.).

[19] Accordingly, the motion to extend time is dismissed, without costs in all the circumstances of this case.

"G. Pardu J.A."