Court File and Parties

Court of Appeal for Ontario Date: 2024-04-30 Docket: COA-24-OM-0098

Before: Roberts J.A. (Motions Judge)

Between: Continental Imperial Exploration Ltd and Andrew Spylo, Applicants (Moving Parties)

And: The Director, Ministry of the Environment, Conservation and Parks, Respondent (Responding party)

Counsel: Andrew Spylo, acting in person and for Continental Imperial Exploration Ltd., moving parties Kathleen Clements and Sarah Valair, for the responding party, the Director, Ministry of the Environment, Conservation and Parks

Heard: April 19, 2024

Endorsement

[1] The moving parties seek an extension of time to bring a motion for leave to appeal the January 19, 2024 order of Sheard J (“the motion judge”). [1] These reasons explain why I dismiss their motion.

[2] The relevant criteria informing the question of whether the justice of the case warrants the requested extension are well known and include the following: a timely intention to appeal; the length of and explanation for the delay; prejudice to the responding party; and the merits of the appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. The lack of merit of the proposed appeal can be determinative: Enbridge, at para. 16. The question is whether the appeal has so little merit that the moving parties should be deprived of the important right to appeal: Duca Community Credit Union Ltd. v. Giovannoli et al. (2001), 142 O.A.C. 146 (C.A.), at para. 14. In my view, that is the case here.

[3] I am prepared to accept the moving parties’ affidavit evidence of a timely intention to appeal; however, Mr. Spylo’s medical issues do not adequately explain the delay in seeking leave to appeal Sheard J.’s decision. There is continuing prejudice to the public interest by the delay to the timely enforcement of the Director’s order under the Environmental Protection Act, R.S.O 1990, c. E.19 (the “EPA”). In that regard, I note that the moving parties’ delay in these proceedings seems to continue an unbroken pattern of delay that required their requests for extensions before the Ontario Land Tribunal (“the Tribunal”), the Divisional Court, and this court. This pattern of delay leads me to question whether, if granted an extension here, the moving parties would proceed with their motion for leave to appeal without further delay.

[4] This motion also falters because the moving parties’ proposed appeal has no merit and is doomed to failure. The lack of merit alone can suffice to dismiss the motion: Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, at para. 21.

[5] The motion judge declined to exercise her discretion to extend the time for the moving parties to bring a judicial review application, dismissed the moving parties’ motion for an extension of time and granted the responding party’s motion to dismiss the application for judicial review from the December 30, 2022 order of the Tribunal.

[6] The motion judge determined that the moving parties had failed to establish that there are apparent grounds for relief or that there is merit to their application. She found that the application had no prospect of success. The Tribunal had determined that there was no proper notice to the Director of the moving parties’ February 7, 2021 notice of appeal and dismissed the moving parties’ motion for an extension of time to appeal the Director’s July 21, 2020 order because they did not meet the criteria for granting an extension which they sought under s. 141 of the EPA. The Tribunal found that even accepting the moving parties’ position that they were not served with the Director’s order until January 28, 2021, their notice of appeal was not received by the Director until June 25, 2021 and was therefore well outside the 15-day period for serving and filing. Section 141 of the EPA provides that:

The Tribunal shall extend the time in which a person may give a notice under section 139 or 140 requiring a hearing on an order or decision where, in the Tribunal’s opinion, it is just to do so because service of the order or decision on the person did not give the person notice of the order or decision. [Emphasis added.]

[7] As the Tribunal found, there was no question that the moving parties had received notice of the Director’s decision. This uncontroverted factual finding distinguishes the present case from the two decisions referenced by the moving parties. First, in Ventin v. Director, Haldimand-Norfolk Regional Health Department, [1994] O.E.A.B. No. 16, the Environmental Appeal Board found that the appellant could not be said to have received notice of the order in issue because, among other things, he was led to believe that the order would not be enforced. Further, in Kagawong Power Inc. v. Ontario (Director, Ministry of the Environment), [2009] 47 C.E.L.R. (3d) 103, in considering a similar appeal provision to s. 141 of the EPA under the Ontario Water Resources Act, R.S.O. 1990, c. O.40, s. 100(6), the Environmental Review Tribunal found that the appellant was confused or misled as to whether the Director had made a final decision. Those particular differentiating facts do not apply here.

[8] The motion judge also determined that the moving parties had adequately explained their delay in bringing the application; she found the moving parties’ evidence on the reasons for delay to be contradicted by the evidence of the responding party and the email exchanges between the moving parties and the Divisional Court. The motion judge concluded that the delay would cause prejudice to the public interest because of the delay to the enforcement of the Director’s order with which the moving parties had not complied.

[9] The moving parties have identified nothing in the Tribunal’s and the motion judge’s dispositions of their motions that would justify this court granting leave to appeal. [2] As a result, their proposed leave motion has no prospect of success. The lack of any apparent merit coupled with the likelihood of further delay and the continuing prejudice to the public interest persuades me that the justice of the case does not warrant the requested extension.

[10] Accordingly, the moving parties’ motion is dismissed. The responding party is not seeking costs, and I therefore order that there be no costs of this motion.

“L.B. Roberts J.A.”

Footnotes

[1] The moving parties also sought other relief, all of which depends on the granting of the requested extension. Given my dismissal of their extension motion, it is unnecessary to deal with the other requested relief.

[2] With respect to the merits of the proposed appeal, although no one raised it, there may also be an issue of this court’s jurisdiction to hear the moving parties’ motion for leave to appeal, given that, under s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, a review of the decision of a single judge of the Divisional Court lies to a panel of the Divisional Court. If this court has no jurisdiction to hear the appeal, the court’s lack of jurisdiction would render the proposed appeal meritless: Sabatino, at para. 23.