Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20230512 DOCKET: M54232 (COA-23-CV-0140)
Simmons J.A. (Motion Judge)
BETWEEN
Melissa Bell Appellant/Moving Party
and
Neda Amini Respondent/Responding Party
Counsel: Melissa Bell, acting in person Susan M. Sack and Deanna R. Miller, for the respondent
Heard: May 11, 2023
Endorsement
Introduction
[1] The appellant requested an order determining whether a transcript is required for this appeal or, if it is not, an extension of time to perfect this appeal to July 31, 2023. The respondent submitted no transcript is required and that no extension of time to perfect should be granted because of lack of merit in the appeal and the appellant’s past litigation conduct.
[2] At the conclusion of the motion hearing I confirmed that a transcript is not required for the appellant’s appeal and that I would grant a 30-day extension to perfect the appeal, conditional on the appellant perfecting within that period, for reasons that I would explain. These are my reasons.
Background
[3] The appellant's action against the respondent was dismissed by summary judgment granted on January 3, 2023.
[4] The appellant appealed the summary judgment by notice of appeal dated February 2, 2023 and filed on February 10, 2023. She subsequently ordered the transcript of the summary judgment hearing on March 6, 2023.
[5] After receiving a notice from the registrar dated March 23, 2023 that the appeal would be dismissed for delay if not perfected by April 17, 2023, the appellant brought this motion dated April 11, 2023.
Discussion
[6] Rule 61.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, requires that an appellant perfect an appeal within 30 days after filing their notice of appeal "where no transcript of evidence" is required for the appeal.
[7] As the summary judgment motion was heard on a paper record and no witnesses were called to testify, the transcript of the summary judgment hearing is not evidence within the meaning of rule 61.09. Nor has the appellant identified an issue on appeal that would make the transcript necessary for the appeal for other reasons.
[8] The appellant's request for an order that a transcript of the summary judgment hearing is required for the appeal is therefore denied. The deadline for perfecting this appeal was therefore 30 days from February 10, 2023.
[9] In general, the court considers five factors when exercising discretion to grant or deny an extension of time:
i) whether the appellant formed an intention to appeal within the relevant time period;
ii) the length of and explanation for the delay;
iii) prejudice to the respondent;
iv) the merits of the appeal; and
v) as an overarching consideration, whether “the justice of the case” supports an extension.
For example, see Monteith v. Monteith, 2010 ONCA 78, at para. 11.
[10] The respondent opposes the appellant's request for an extension of time to perfect her appeal for two reasons. First, the respondent submits the appeal is patently without merit. Second, the respondent submits that the appellant's conduct throughout this litigation and the litigation that led to the appellant's claim against the respondent militates against an extension.
[11] In my view, a peremptory extension comparable to the original time limit for perfecting is warranted for several reasons.
[12] First, the appellant served and filed her notice of appeal within the proper time limits.
[13] Second, the appellant acted reasonably promptly in ordering the transcript and in later bringing this motion once informed by the court that the appeal would be dismissed for delay if not perfected by a specified date.
[14] Third, the appellant is self-represented. Self-represented litigants often fail to understand the concept that a transcript of a motion hearing does not constitute evidence under rule 61.09. The fact that court notices and practice directions may point out that a transcript of a motion hearing is not required for an appeal does not, as a practical matter, in general obviate this problem. [1]
[15] Fourth, the appellant was entitled to appeal the summary judgment as of right.
[16] Fifth, the respondent has not identified any prejudice arising from the extension I propose. The fact that the respondent must respond to an appeal, which the appellant was otherwise entitled to bring, does not amount to prejudice in this case where the appellant has acted reasonably promptly, and the relatively brief delay does not give rise to any specific prejudice.
[17] Sixth, given the common misconceptions on the part of self-represented litigants around rule 61.09, the fact that the appellant was entitled to appeal as of right, and the appellant's conduct in acting reasonably promptly, the merits of the proposed appeal are of limited significance in deciding whether to grant an extension. In my view, in all the circumstances, the interests of justice do not favour depriving the appellant of her right of appeal based on the alleged lack of merit absent a motion to quash, which would be heard by a panel of three judges. Moreover, should the appellant engage in improper conduct in this appeal, the respondent can invoke appropriate remedies.
[18] That said, it is incumbent on the appellant to move promptly to perfect her appeal and, at this stage, absent unforeseen circumstances arising, she should be afforded no more than 30 days to do so.
Disposition
[19] Based on the foregoing reasons, it is ordered that:
a transcript of the summary judgment hearing is not required for this appeal;
subject to further order of this court, the time for perfecting this appeal is extended to June 12, 2023 [2] conditional on the appellant perfecting this appeal on or before that date in default of which the motion for an extension is dismissed.
in accordance with the parties’ requests, costs of this motion are reserved to the panel hearing the appeal.
“Janet Simmons J.A.”
Notes
[1] Hopefully, these reasons will, in the future, assist counsel in clarifying for self-represented litigants that when an appeal is brought from a motion or application heard based on a paper record and no witnesses are called at the hearing to testify, a transcript of the hearing is not “evidence” within the meaning of rule 61.09(1). Accordingly, a transcript of the hearing is not required for the appeal and the 30 day time limit for perfecting the appeal specified in rule 61.09(1)(a) applies.
[2] This is slightly more than 30 days because the 30-day period would otherwise expire on a weekend.