COURT OF APPEAL FOR ONTARIO

CITATION: Hoffelner v. Whiteley, 2024 ONCA 753

DATE: 20241009

DOCKET: M55390 (COA-23-CV-1311)

Madsen J.A. (Motions Judge)

BETWEEN

Caroline Hoffelner

Applicant

(Respondent/Responding Party)

and

Heath Whiteley

Respondent

(Appellant/Moving Party)

and

The Estate of Gerda Hoffelner

Respondent

(Respondent/Responding Party)

Heath P. L. Whiteley, acting in person

Anthony Macri, for the respondents

Heard: October 3, 2024

ENDORSEMENT

[1] The moving party, Mr. Whiteley, seeks to set aside the registrar’s order dated September 3, 2024, dismissing the appeal for delay, and requests an order permitting him to perfect his appeal within seven days.

[2] This is Mr. Whiteley’s second motion for an extension of time to perfect his appeal. On March 25, 2024, Coroza J.A. granted an order allowing Mr. Whiteley ten days to perfect the appeal. He did not do so. On August 22, 2024, the registrar advised Mr. Whiteley that the court administratively dismissed the appeal for delay pursuant to r. 61.13 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and that he may bring a motion to re-open the matter and seek an extension of time.

[3] For the reasons that follow, this motion is dismissed.

A. Brief Background

[4] Mr. Whiteley seeks to appeal the final order of Bruhn J. made November 1, 2023 (the “Final Order”), following an uncontested trial in a family matter. The order addressed certain payments to be made from proceeds of sale of a property jointly owned between the appellant, his former spouse, and his mother-in-law (now deceased). Mr. Whiteley was in default in that proceeding, not having filed an Answer.

[5] Mr. Whiteley filed a Notice of Appeal on December 13, 2023. There were delays in perfecting the appeal in part related to a disagreement between the parties about whether transcripts were required for the appeal, as well as disagreements about which appellate court had jurisdiction. Mr. Whiteley brought what he describes as an “omnibus motion” before Coroza J.A. that was heard on March 25, 2024, in which he sought eleven heads of relief. Coroza J.A. noted that jurisdiction could only be determined by a panel: Belton v. Spencer, 2020 ONCA 623, at para. 41; Fontaine v. Attorney General of Canada, 2020 CanLII 64770 (Ont. C.A.), at para. 14.

[6] Coroza J.A. extended the time to perfect the appeal to March 14, 2024. He found, applying the test set out in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 15, that Mr. Whiteley had shown a bona fide intention to appeal within the relevant time; that the delay in perfection had been caused in part by a debate about jurisdiction; and that there would be minimal prejudice to the respondents on the motion. He further stated that the merits of the appeal “[did] not weigh heavily against granting an extension of time to perfect.”

[7] It is now more than six months since this appeal should have been perfected. Mr. Whiteley served his documents to perfect the appeal on April 4, 2024. He did not file them with the court. He states that he only learned on August 15, 2024, by email from the court (in response to an enquiry by the respondents regarding the status of the appeal) that the documents had not been filed. The registrar administratively dismissed the appeal on August 22, 2024. Not until September 16, 2024 — one month after being advised by the court that his documents had not been filed — did Mr. Whiteley serve this motion.

B. Parties’ Submissions

[8] Mr. Whiteley asserts that while he served the documents required to perfect the appeal on April 4, 2024, his failure to file the documents with the court was through inadvertence, and not intentional. He argues that he was found by Coroza J.A. to have demonstrated an intention to appeal on a timely basis; that there is no prejudice to the respondent because they filed their factum with the court after being served with his materials; that he took prompt steps when he became aware that his materials had not been filed; and that Coroza J.A. already found that there was merit to his appeal. The heart of the argument on appeal relates to Requests to Admit under r. 22 of the Family Law Rules, O. Reg. 114/99 (the “Rules”), which he says the trial judge did not advert to or consider in reaching her final decision on the uncontested trial.

[9] Mr. Macri, on behalf of the respondents, opposes the setting aside of the administrative dismissal and any further extension of time to file materials. He argues that this is a further delay tactic by Mr. Whiteley who failed to follow the Rules in the proceeding below, is in breach of court orders to file both an Answer and successive financial statements, and is also in breach of at least one costs order. He argues that if the failure to file the documents was inadvertent, Mr. Whiteley should have acted much more promptly when advised by the court of the status of the appeal. Instead, Mr. Whiteley waited a month before serving this motion. Mr. Macri argues that his client is prejudiced by continued delay in this matter and the inability to access funds being held in trust to which she is entitled.

C. Analysis

[10] The test to set aside an order administratively dismissing an appeal is set out in Sickinger v. Sickinger, 2017 ONCA 760, at paras. 13-14. The overriding consideration is the justice of the case, which entails a consideration of the merits of the appeal. Further, the court considers factors analogous to those typically considered on a motion to extend time to appeal: (1) the explanation for not perfecting the appeal within the stipulated timelines; (2) the length of and explanation for the delay; and (3) prejudice to the respondent.

[11] Applying the test in Sickinger, I dismiss the appellant’s motion for the following reasons:

Merits of the Appeal

[12] Coroza J.A. did not hold that the appeal had merit. He held that the “merit of this appeal does not weigh heavily against granting an extension of time to perfect.” This appeal, brought by the appellant who had no standing below for failure to file an Answer, is difficult at best. Among the consequences of not filing an Answer are that a party is not entitled to participate in the case in any way, and that the court may deal with the case in the party’s absence: rr. 1(8.4) and 10(5) of the Rules.

Explanation for not perfecting the appeal in the time stipulated:

[13] In addressing this factor, context matters. Mr. Whiteley is a lawyer, who ought to be familiar with both serving and filing documents. While he states that he failed to file through inadvertence, this claim must be assessed in the context of the motion materials as a whole and the path of this litigation.

[14] Mr. Whiteley has been benefitting for over ten months from the automatic stay of the order of Bruhn J., which directed various payments by him and from his share of funds in trust to the respondents. He has repeatedly been found not to have met his obligations under the Rules and has failed to respect several court orders. In her endorsement dated May 23, 2023, Bruhn J. stated:

The respondent has not been denied procedural fairness. The difficulties he finds himself in are all of his own making due to his repeated failures to comply with court orders and the Rules. The respondent’s repeated failures to comply have prejudiced the applicant and the co-respondent by preventing the timely resolution of this matter.

[15] In an Endorsement dated September 25, 2023, Bruhn J. rejected an affidavit filed by Mr. Whiteley despite not having standing on the respondents’ 14B motion, stating as follows:

I note that the Respondent/Whiteley is a lawyer and presumably aware of his obligations to comply with the Rules and Notice to the Profession. … [he] ought not be rewarded for ignoring the Rules and the Notice to the Profession yet again.

[16] Further, on November 1, 2023, on hearing the uncontested trial, Bruhn J. endorsed:

The respondent Whiteley repeatedly failed to comply with Court Orders and the Rules. He did not file an Answer. He was in default.

[17] This context is relevant in assessing the current claim of inadvertence. I do not accept Mr. Whiteley’s explanation. I also note, as observed by counsel for the respondents, the one-month gap between Mr. Whiteley being advised by the court that the materials were not filed and service of this motion.

Prejudice to the respondents

[18] Setting aside the administrative dismissal at this late stage, after an indulgence was already granted by this court, would prejudice the respondents on the motion. The respondents are entitled to finality.

[19] When Coroza J.A. granted the extension, it was incumbent on Mr. Whiteley to ensure that he complied with the timeline set. Instead, the pattern of not complying with directives of the court has continued. A further indulgence is not warranted.

[20] Motion dismissed.

[21] The respondents have been successful on this motion. Costs are set at $3,000 inclusive of HST and disbursements, payable by Mr. Whiteley to the respondents from his share of the proceeds of sale of 310 Stouffville Road, Richmond Hill, currently held in trust by McPherson & Lewis.

“L. Madsen J.A."