COURT OF APPEAL FOR ONTARIO DATE: 20240201 DOCKET: M54721 (COA-22-CV-0445)

Fairburn A.C.J.O., van Rensburg and Zarnett JJ.A.

BETWEEN

David O’Neill, in his capacity as Estate Trustee of T.O., deceased Applicant (Moving Party/Appellant/Respondent in Cross-Appeal)

and

D.O. Respondent (Responding Party/Respondent/Appellant in Cross-Appeal)

Counsel: Tim Gleason and Megan Phyper, for the moving party Robert N. Kostyniuk, for the responding parties D.O., The Ridgeway Education Rec Centre Ltd. and 2012023 Ontario Limited

Heard: in writing

REASONS FOR DECISION

Introduction

[1] In July 2019, T.O. commenced an application in the Superior Court against his then spouse, D.O. In July 2021, T.O. added two corporations owned by D.O., The Ridgeway Education Rec Centre Ltd. (“Ridgeway”) and 2012023 Ontario Limited (“201”), as parties to the application. One of the claims made by T.O. was for repayment of certain loans.

[2] The proceedings went to trial. At trial, T.O. confirmed that he was not seeking repayment of the loans from D.O. personally but was claiming repayment from the business that was carried on by one or both of her corporations. On October 17, 2022, the trial judge dismissed T.O.’s claims for repayment of certain loans. Although the trial judge found the advances made to the business were loans, he held that the claim for repayment was statute barred.

[3] T.O. commenced an appeal to this court by a notice of appeal served on November 15, 2022. The appeal was against the dismissal of the claim for repayment of the loans. Counsel [1] for T.O. copied the title of proceedings for the notice of appeal from the title of proceedings on the trial judge’s reasons, which did not reflect the addition of Ridgeway and 201 as parties, with the result that only D.O. was shown in the title of proceedings on the notice of appeal as the respondent to the appeal.

[4] The appeal was perfected in May 2023. T.O. died in August 2023, and the moving party, T.O.’s estate, is continuing the appeal.

[5] The appeal was scheduled to be heard on December 7, 2023. At the opening of the appeal, the moving party asked to amend the notice of appeal to add Ridgeway and 201 as respondents, and to clarify that relief is sought against them. The request was opposed by counsel for D.O, who confirmed he also represented Ridgeway and 201.

[6] On December 7, 2023, we adjourned the appeal, directed that the motion to amend be determined in writing, and set a timetable for materials: T.O. Estate v. D.O., 2023 ONCA 824. Having reviewed those materials, we conclude that the motion should be granted.

The Test to Amend

[7] The factors germane to whether leave to amend a notice of appeal should be granted after an appeal has been perfected were set out by Cronk J.A. in Yar v. Yar (2012), 24 R.F.L. (7th) 101 (Ont. C.A.), at paras. 14-15. They are: (1) whether the appellant formed an intention to appeal within the relevant time period; (2) the length of and any explanation for the delay; (3) any prejudice to the respondent; (4) the merits of the appeal; and (5) the justice of the case.

[8] We note, additionally, that where the amendment seeks to add respondents to the appeal, the factors must be analyzed taking into account the interests of the added respondents.

Analysis

[9] Each of the factors pulls in favour of allowing the amendment.

[10] First, counsel who prepared the notice of appeal has deposed that T.O. instructed her, prior to its delivery, to appeal the dismissal of the claim for repayment. That claim was made, at trial, against Ridgeway and 201, not against D.O. Accordingly, it is clear that T.O. had the requisite intention to proceed with an appeal against those two corporations within the relevant period.

[11] Second, the delay has been adequately explained. We accept that the failure to name Ridgeway and 201 as respondents in the notice of appeal was due to counsel’s inadvertence. Ridgeway and 201 were added as parties to T.O.’s claims before trial and were the only targets of the claim for repayment. There was no reason not to include them as respondents on the appeal, and every reason to do so. We also accept that the motion to amend was brought promptly upon counsel realizing her error.

[12] Third, we fail to see any relevant prejudice to the responding parties arising from the delay in formally adding Ridgeway and 201 as respondents to the appeal. D.O., Ridgeway and 201 were represented at trial by the same counsel, and still are. Given the way the claim for repayment proceeded at trial – against D.O.’s business (her corporations) and not against D.O. personally – there was no reason for them to permanently expect that an appeal would proceed on a different footing. The appellant’s factum set out who the claim at trial was against and made the argument that the limitation period was complied with given the date Ridgeway and 201 were added as parties to the application. The factum also argued that financial statements of Ridgeway acknowledged the debt thus extending the limitation period. The relief requested in the factum included an order “[r]equiring the added party 201 to repay the Loans”. The factum clearly pointed at Ridgeway and 201 even though they were absent from the title of proceedings in the appeal.

[13] The fact that the responding parties will now have to answer an appeal that properly names Ridgeway and 201 as respondents is not prejudice resulting from the delay. Although Ridgeway and 201 have not had the opportunity to deliver a factum responding to the appeal, that is addressed by permitting them to do so as one of the terms upon which we grant the motion, as set out below. Similarly, we provide D.O. with the opportunity to amend her factum on the appeal, to address any concern that there were points her factum would have made differently if Ridgeway and 201 were earlier named as respondents.

[14] Fourth, the appeal has arguable merit. The loans had no fixed payment date. They may in law be considered demand obligations. Section 5(3) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, was not cited, considered, or applied by the trial judge in his reasons. That provision starts the limitation clock running for a demand obligation only once a demand for performance is made, which the moving party argues was within two years of the addition of Ridgeway and 201 to the proceedings. The moving party also argues that the trial judge did not give effect to the acknowledgment of the loans in Ridgeway’s financial statements, overlooking s. 13 of the Limitations Act. These arguments deserve a hearing.

[15] Fifth, the justice of the case favours allowing the amendment so the matter may be determined on its merits, an important goal of the civil justice system. Denying the amendment would penalize the moving party for an inadvertent error of counsel, which is to be avoided: Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731, at para. 6.

Disposition

[16] The moving party is granted leave to deliver an amended notice of appeal, in the form attached as Schedule A to his notice of motion, within 10 days of the release of these reasons.

[17] Ridgeway and 201 may deliver a factum as respondents on the appeal, and D.O., if advised, may file an amended factum as a respondent on the appeal, within 45 days of the release of these reasons. D.O.’s amended factum, and that of Ridgeway and 201, may be combined as one respondents’ factum, if they so desire.

[18] The Appeal Scheduling Unit shall set a new date for the hearing of the appeal; the new date shall not be earlier than 60 days after the release of these reasons.

[19] In the circumstances, the parties shall bear their own costs of the attendance on December 7, 2023 and of this motion. The moving party’s written submissions did not claim costs. The moving party was successful on the motion but is receiving an indulgence. Although in some cases this would entitle a responding party to costs, we decline to order them here. The responding parties asked that the motion be dismissed with costs, but did not claim costs in their written submissions if the motion was granted. Although they purported to reserve the right to address terms and costs once our decision was known, our clear direction was that this matter be heard in writing according to the timetable we set. Any request for terms or costs if the motion was allowed should have been included in the written submissions filed in accordance with that timetable. We refuse leave to make further submissions.

“Fairburn A.C.J.O.”

“K. van Rensburg J.A.”

“B. Zarnett J.A.”

[1] Not Mr. Gleason or Ms. Phyper, who act only for the purpose of this motion.