Court of Appeal for Ontario

Date: 2017-02-28 Docket: M46945 (M46782) Panel: LaForme, Pepall and Pardu JJ.A.

Between

Joan Abernethy Moving Party (Appellant)

and

Attorney General of Canada and Her Majesty the Queen in Right of Ontario as represented by Crown Attorney's (Justice) James A. Ramsay, Ron Davidson, Jennifer Broderick and Lucas O'Neill, Kathryn (Kathy) Rippy, and Gerry McNeilly and St. Joseph's Healthcare (Hamilton) Director, East Region Mental Health Services, Judith Santone

Respondent

Counsel

Joan Abernethy, acting in person

Ayesha Laldin, for the respondent

Heard: February 23, 2017

Endorsement

Background

[1] Ms. Abernethy commenced an $8.4 million claim that alleged various causes of action against Ontario and Canada, as well as various provincial and federal employees. Among other things, it alleged misfeasance in public office, false imprisonment, and conspiracy.

[2] On November 14, 2013 Canada's motion to strike parts of Ms. Abernethy's Fresh as Amended Statement of Claim without leave to amend and dismissing her action as against Canada was granted. The motion judge concluded that the Fresh as Amended Statement of Claim failed to disclose a reasonable cause of action or to plead material facts supporting any of the alleged causes of action.

This Motion

[3] Ms. Abernethy filed a notice of appeal to this court on December 23, 2013 but failed to perfect her appeal within the required time. She then served a notice of motion in this court dated February 10, 2014 to extend the time to appeal. Her motion remained inactive and was ultimately heard by a single judge of this court sitting in chambers on September 9, 2016.

[4] The chambers judge refused Ms. Abernethy's requested relief. She found that Ms. Abernethy had an intention to appeal within the requisite time and that no special prejudice would result by granting an extension. However, she also found that Ms. Abernethy had not adequately explained the long delay in bringing the appeal and concluded the appeal lacked merit. The chambers judge ultimately held that the justice of the case did not compel an extension of time.

[5] Ms. Abernethy's motion before this panel is to review the chambers judge's order pursuant to s. 7(5) of the Courts of Justice Act.

Conclusion

[6] Having considered oral submissions and reviewed the motion materials, we first note that the chambers judge applied the correct test for the granting of an extension of time: see D.G. v. A.F., 2014 ONCA 436, [2014] O.J. No. 2608. Second, the chambers judge's exercise of discretion to deny an extension of time is accorded considerable deference on a s. 7(5) Courts of Justice Act review by a panel of this court: see R. v. Gatfield, 2016 ONCA 23, 345 O.A.C. 197, at para. 11.

[7] The chambers judge concluded the motion judge did not err when he held that the Fresh as Amended Statement of Claim failed to disclose a reasonable cause of action or to plead material facts supporting any of the alleged causes of action. She committed no error in doing so and was entitled to conclude that the justice of the case, in all the circumstances, dictates that no extension of time should be granted.

[8] There is no reason for this panel to interfere with the chambers judge's exercise of discretion. Ms. Abernethy's motion is dismissed.

[9] Canada is entitled to costs of this motion fixed in the amount of $500, inclusive of disbursements and all applicable taxes.

"H.S. LaForme J.A."

"S.E. Pepall J.A."

"G. Pardu J.A."