Court of Appeal for Ontario

Date: 2025-04-24
Docket: M55909 (COA-24-CV-1368)
Judge: L.B. Roberts (Motions Judge)

Parties

Between:
Toronto Standard Condominium Corporation No. 2931
Applicant (Respondent/Responding Party)

and
Marina Tsatskin
Respondent (Appellant/Moving Party)

And Between:
Cristina Gagliese, Tony Gagliese and Vince Messina
Applicants (Respondents/Responding Parties)

and
Marina Tsatskin, Faina Zilberman and Mark Zilberman
Respondents (Appellants/Moving Parties)

Appearances:

• Haider Ashraf, for the moving parties, Marina Tsatskin, Faina Zilberman and Mark Zilberman
• Jonathan Fine, for the responding party, Toronto Standard Condominium Corporation No. 2931
• Nancy J. Tourgis, for the responding parties, Cristina Gagliese, Tony Gagliese and Vince Messina

Heard: April 22, 2025

Endorsement

Introduction

[1] The moving parties seek an extension of time to perfect their appeals from the orders of Chalmers J. dated November 27, 2024. Chalmers J. allowed the respective applications brought by the responding parties: by the Toronto Standard Condominium Corporation No. 2931 (“TSCC”) to compel the sale of Ms. Tsatskin’s condominium; and by the Gaglieses and Mr. Messina to obtain a non-harassment order against the moving parties. The responding parties oppose the moving parties’ extension motion.

Governing Test for Extension of Time

[2] In Caledon (Town) v. Darzi Holdings Ltd., 2022 ONCA 455, at para. 28, Brown J.A. reiterated the governing test for an extension of time to perfect an appeal, as follows:

The overarching principle is whether the justice of the case requires granting or refusing the relief sought. As part of the analysis, the court typically considers several factors: (i) whether the appellant formed an intention to perfect the appeal within the time prescribed by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; … (iii) the length of the delay; (iv) the explanation for the delay; (v) the merits of the proposed appeal; and (vi) any prejudice to the respondent.

Analysis

[3] For the reasons that follow, I am not persuaded that the overarching consideration of the justice of the case warrants the requested extension.

[4] I am satisfied that the moving parties formed an intention to perfect the appeal within the prescribed time – they filed a notice of appeal on December 12, 2024, and attempted to perfect the appeal, although their materials were rejected because of their deficiencies.

[5] As for the delay, the appeal was not perfected in a timely manner, which triggered the Registrar’s notice of intent to dismiss the appeal for delay if not perfected by March 28, 2025. The explanation for the delay of several months is less than satisfactory: the appeal materials were rejected by the court office on two instances because of deficiencies, including that two issued and entered orders had to be submitted.

[6] While I appreciate that counsel for the moving parties and the TSCC were trying to resolve issues respecting the contents of the order affecting the TSCC, it was known since January 29, 2025, when the order related to the Gagliese and Messina application was issued, that two orders were required to perfect the appeal. As this court’s office repeated in its email dated March 5, 2025, rejecting the moving parties’ appeal materials, as two applications were brought before Chalmers J., two orders were required to perfect the appeal, notwithstanding that Chalmers J. disposed of both applications in one set of reasons. It is well-established that an appeal is from the court’s order and not its reasons.

[7] Pursuant to rules 59.03 and 59.04 of the Rules of Civil Procedure, it was open to the moving parties to draft an order and, if not accepted by the other parties, to seek an attendance before the Registrar or Chalmers J. to settle the form of the order. This was not done. While I appreciate that the TSCC could have done the same thing, this does not displace the moving parties’ obligation to take all requisite steps to perfect their appeal, particularly in light of this court’s notice of intention to dismiss the appeal for delay if not perfected by March 28, 2025.

[8] That said, the factors of the delay and the lack of a satisfactory explanation for the delay, by themselves, would not support the dismissal of the moving parties’ extension request. However, those factors warrant refusing the extension when coupled with the lack of merit of the appeal and the ongoing prejudice to the responding parties, to which I now turn.

Merits of the Appeal

[9] I appreciate that for the purposes of this motion my task is not to finally determine the merits of the appeals. While the absence of merit can justify the denial of an extension, when assessing the merits of the appeal, I must consider whether the appeal is so lacking in merit that the appellants should be denied their important right of appeal: Issasi v. Rosenzweig, 2011 ONCA 112, para 10; Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, paras 20-21; Pantoja v. Belilla, 2023 ONCA 757, para 4. That is the case here.

[10] Starting with the TSCC appeal, the main ground of appeal is that Chalmers J. erred by imposing the disproportionate and extreme remedy of the sale of Ms. Tsatskin’s condominium unit. This ground has no merit. Chalmers J.’s November 27, 2024 endorsement followed his April 8, 2024 decision in which he found that Ms. Tsatskin had engaged in highly malicious and destructive conduct and ordered that she cease her harassment of TSCC’s administration and other residents of the condominium complex. He declined to order the sale of her unit at that point, giving her “one last opportunity”. His November 27, 2024 reasons explain why he found that she had breached his April 8, 2024 order: by Ms. Tsatskin and her parents commencing meritless proceedings against the TSCC, their counsel, and the Gagliese respondents before the Human Rights Tribunal (“HRTO”) and the Law Society of Ontario (“LSO”). Contrary to the moving parties’ submissions, it was open to Chalmers J. to find that the HRTO and LSO proceedings were an abuse of process and a breach of his order. As a result, he ordered the sale of Ms. Tsatskin’s unit. In sum, the moving parties have not raised any arguable issue with respect to Chalmers J.’s November 27, 2024 order.

[11] As for the Gagliese and Messina appeal, counsel submitted that while the moving parties have no difficulty with the restraining order, they maintain that there was no basis for Chalmers J. to order costs against Mr. Zilberman. I see no merit in this argument. The moving parties have raised no arguable issue with respect to Chalmers J.’s exercise of his discretionary to award costs to the successful parties against the unsuccessful parties on this application.

Prejudice

[12] I turn finally to the question of prejudice. The responding parties simply want peace from the moving parties’ harassment and an end to this dispute. As a result, in considering the justice of the case, there is clear prejudice to all the responding parties in having to respond to these meritless appeals: Pantoja, at para. 13.

Conclusion

[13] Accordingly, I find that the justice of the case warrants the dismissal of the motion to extend the time for the perfection of these appeals.

Costs

[14] The responding parties are entitled to their all-inclusive costs of this motion from the moving parties as follows:

• To the TSCC, costs in the amount of $13,000.
• To the Gagliese and Messina responding parties, costs in the amount of $550.

“L.B. Roberts J.A.”