COURT OF APPEAL FOR ONTARIO

CITATION: Jay-Pee Drycleaners Inc. v. 2321324 Ontario Inc., 2020 ONCA 711

DATE: 20201106

DOCKET: M51873 (C68270)

van Rensburg J.A. (Motions Judge)

BETWEEN

Jay-Pee Drycleaners Inc. (Lee Byeongheon)

Plaintiff

(Appellant/Responding Party)

and

2321324 Ontario Inc. A.K.A Jasaab Holdings Inc.

Defendant

(Respondent/Moving Party)

Richard J. Bosada, for the moving party

Lee Byeongheon, acting in person

Heard: November 4, 2020 in writing

ENDORSEMENT

[1] This is an opposed motion for the extension of time to serve and file a notice of cross-appeal in C68270. The appeal is from the judgment of Hackland J. dated March 6, 2020 that proceeded as an assessment of damages following the wrongful termination of the appellant’s lease with the respondent. The appellant delivered a notice of appeal on March 20, 2020.

[2] The evidence on the motion consists of the affidavit of a legal assistant in the office of the moving party’s counsel, which for the most part is made on information and belief. She confirms that the respondent provided instructions to counsel to cross-appeal, and that senior counsel instructed junior counsel to prepare a notice of cross-appeal. She refers to the difficulties encountered in their law office as a result of COVID-19. She states that the junior lawyer only discovered on September 8, 2020 that the time periods had begun to run again in this court on July 16, 2020. All of this information ought to have been provided by affidavit from one or both of the lawyers.

[3] On September 14, 2020 the parties attended a motion by teleconference. This was a motion by the appellant that was partially opposed by the respondent. Hourigan J.A. granted an order permitting e-filing without an OCR, dispensing with the necessity of filing an issued and entered order, and extending the time to December 14, 2020 for the appellant to perfect the appeal. He reserved costs to the panel hearing the appeal. Although the legal assistant’s affidavit refers to the motion, there is no explanation for the failure to raise the issue of the cross-appeal when that motion was heard, nor is there any real explanation for why this motion was brought only now.

[4] In opposing the motion and asking that it be struck the appellant raises concerns about delay. He is afraid that the delays he experienced in the court below, which he attributes to the respondent, will continue in this court.

[5] Extending the time as requested by the respondent with appropriate directions should not delay the scheduling and hearing of the appeal. At the end of September, the appellant served an appeal book, factum, exhibit book and transcript, attempting to perfect the appeal at that time. There were some issues with the materials, so the appeal has not yet been perfected. The respondent however has all that it needs to prepare its compendium and factum.

[6] I am satisfied that it is in the interests of justice to extend time. Accordingly, I make the following order: the respondent shall serve and file its notice of cross-appeal on or before November 10, 2020. The respondent shall, by December 15, 2020, serve and file its compendium and factum on the appeal. The compendium shall include documents the respondent considers relevant to the cross-appeal, and the factum shall also address the cross-appeal. The appellant may then deliver a factum and cross-appeal compendium, if so required, responding to the cross‑appeal. Costs of this motion are reserved to the panel hearing the appeal.

“K. van Rensburg J.A.”