Court of Appeal for Ontario

Date: February 5, 2018

Docket: M48394 (C63525)

Panel: LaForme, Rouleau and van Rensburg JJ.A.

Between

Penelope Kay Sickinger Applicant (Respondent in Appeal)

and

Ralph Thomas James Sickinger Respondent (Appellant)

Counsel

Gary S. Joseph, for the appellant

Katherine Costin, for the respondent

Heard and released orally: February 1, 2018

Reasons for Decision

[1] The appellant brings forward evidence that was not before the motion judge. He asserts that when this fresh evidence is considered, the court will be satisfied that a reasonable explanation for his delay in perfecting the appeal exists and that the appeal is not entirely without merit.

[2] The reason to support the admission of such evidence is that counsel who was assisting the appellant failed to put before the motion judge important evidence that was relevant to the test for extending time to perfect his appeal. As this court noted in Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695, 87 O.R. (3d) 660 (C.A.), counsel's inadvertence should not prejudice a client's cause. The interests of justice require the admission of this evidence.

[3] The evidence now before the court calls into serious question the motion judge's conclusions on the merits of the motion to extend time, and in particular, with respect to whether there was a reasonable explanation for the appellant's delay. When that factor is taken into consideration together with all the other fresh evidence, we are satisfied that the justice of the case requires that the order of the motion judge and the dismissal for delay be set aside, and that time to perfect the appeal be extended to February 16, 2018.

[4] The appellant has undertaken not to move for a stay of the judgment pending appeal.

[5] There will be no costs of this motion.

"H.S. LaForme J.A."

"Paul Rouleau J.A."

"K. van Rensburg J.A."