CITATION: 690 King Street Corp. v. Desco Plumbing and Heating Supply Inc., 2021 ONSC 1050
DIVISIONAL COURT FILE NO.: 601/20
DATE: 20210209
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Kristjanson J.
B E T W E E N:
690 KING STREET CORPORATION
Adrian Visheau and Adrienne Ho for the Defendant/Moving Party
Defendant/Moving Party
- and -
DESCO PLUMBING AND HEATING SUPPLY INC./LES GROSSISTES EN PLOMBERIE ET CHAGUFFAGE DESCO INC.
R. Chris Belsito for the Plaintiff and the Defendant Responding Parties
Plaintiff/Responding Party
-and-
AVN PLUMBING LIMITED and ANGELO SALTARELLI (Defendants/Responding Parties)
HEARD by videoconference: February 5, 2021
Kristjanson J.
[1] The moving party, 690 King Street Corporation seeks an extension of time to serve and file its notice of appeal from the judgment of Justice D.A. Broad dated November 9, 2020, reported at 2020 ONSC 6728. The motion is opposed by the plaintiff, Desco Plumbing and Heating Supply Inc./Les Grossistes En Plomberie et Chauffage Desco Inc., and the defendants AVN Plumbing Limited and Angelo Saltarelli (collectively referred to as “Desco” below).
[2] Based on the advice of its former counsel, 690 King was under the mistaken belief that it had 30 days to commence an appeal to the Court of Appeal by Rule 61.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In fact, the appeal is governed by section 71(2) of the Construction Act, R.S.O. 1990, c. C.30, which provides that the notice of appeal to the Divisional Court must be served within 15 days. That section provides that the time for filing or serving the notice of appeal may be extended by consent, or by a single judge of the Divisional Court “where an appropriate case is made out for doing so.”
[3] The test on a motion to extend time for filing a notice of appeal is well-settled. As recently stated by van Rensburg, J.A. in 40 Park Lane Circle v. Aiello, 2019 ONCA 451 at para. 2, in the context of the Rules of Civil Procedure but equally applicable to an extension of time under the Construction Act:
[A]ny time limit prescribed by the Rules may be extended on such terms as are just. The factors to be considered in deciding whether to extend time to appeal are: (1) whether the proposed appellant had a bona fide intention to appeal within the prescribed period; (2) the length of and explanation for the appellant’s delay; (3) any prejudice to the respondent from the granting of an extension of time; (4) the merits of the proposed appeal; and (5) whether the justice of the case requires an extension of time. At the stage of considering the justice of the case, the court must consider all of the preceding factors as well as any others that may be relevant, and balance those factors
Intention to Appeal, Length of Delay, and Explanation
[4] I find that 690 King formed an intention to appeal within the 15-day appeal period. The delay was 14 days after the expiry of the appeal period. There is a compelling explanation – the inadvertence of counsel, not any fault of 690 King.
[5] On November 16, 2020 – 7 days after the judgment, and within the appeal period - 690 King’s counsel wrote to Desco’s counsel confirming its intention to appeal the judgment. The former solicitor’s affidavit clearly sets out that: (a) his client intended to appeal within the appeal period, (b) the intent to appeal was conveyed to the lawyers for the plaintiff within the appeal period, both in telephone calls and by the e-mail, (c) he believed that the appeal period was 30 days, and (d) the failure to commence the appeal within the 15-day Construction Act appeal period was that of the lawyer, not the client.
[6] 690 King retained new counsel for the appeal on December 7, 2020. 690 King was advised by new counsel that the appeal should have been commenced to the Divisional Court under section 71 of the Construction Act, and they were now outside the appeal period. On December 8, 2020, 14 days after the expiry of the appeal period, 690 King served its notice of appeal and certificate respecting evidence, together with a request for the Desco’s consent to late filing. Desco did not consent.
Prejudice
[7] The question is whether the 14-day delay caused prejudice to Desco. Under section 71 of the Construction Act, 690 King is entitled to an appeal as of right. In considering the issue of prejudice, the relevant consideration is not prejudice resulting from the progress of the actual appeal, but rather the prejudice that would be caused from the delay in filing the notice of appeal: 40 Park Lane Circle v. Aiello, 2019 ONCA 451 at para 6.
[8] Desco relied on prejudice flowing from its inability to enforce the judgment, which is not relevant, since 690 King Street had a right of appeal. In oral argument, Desco’s counsel conceded that he could not point to evidence of prejudice from the 14-day delay in filing the notice of appeal. I find that there is no prejudice caused by the 14-day delay.
Merits
[9] Desco vigorously opposed the 14-day extension based on the merits of the appeal, delving deeply into the evidence and the law. Where there is a right of appeal, the only question is whether “whether there is “so little merit in the proposed appeal that the appellant should be denied [his] important right of appeal”: Duca Community Credit Union Ltd. v. Giovannoli (2001), 2001 24017 (ON CA), 142 O.A.C. 146 (C.A.), at para. 14. Where there is no real prejudice to the other side, and there is a right of appeal, a party should not be deprived of that right even where it is difficult to see the merits of a proposed appeal: 40 Park Lane Circle, para. 8. Van Rensburg, J.A. in 40 Park Lane Circle, para.9, strongly cautioned that:
In general, however, motions to extend time to appeal to this court should not devolve into a full argument on the merits of the appeal or the litigation as a whole. It is not the place of a single judge on a motion to extend time, to consider the full merits of an appeal that only a panel of the court would have the authority to determine. It is sufficient to say in this case that even a cursory review of the notice of appeal and reasons for judgment make it clear that the proposed appeal is not so completely devoid of merit that the appellant should be denied his important right of appeal.
[10] 690 King raises several alleged errors of law in its Notice of Appeal. I find that the proposed appeal is not so completely devoid of merit that the appellant 690 King should be denied its important right of appeal.
Appropriate Case
[11] The Construction Act provides that a judge may extend the time where an “appropriate case” is made out for doing so. Like the “justice” of the case in Rule 3.02, this is an umbrella factor that encompasses fairness, balance, and a contextual consideration of other relevant factors. An appeal that 690 King was entitled to, and wanted to pursue, should not be defeated because of a mistake by its lawyer. Indeed, there are several cases in which counsel have confused appeal routes from judgments under the Construction Act. The opposing parties were advised of the intent to appeal within the appeal period, the delay in commencing the appeal was 14 days, and there is no prejudice. I find that this is an appropriate case to extend time for commencing the appeal.
Disposition of Motion
[12] The motion is granted. The responding parties are to pay costs to 690 King Street in the total amount of $5,000.00, inclusive. This is an amount which I find is proportionate, fair, and reasonable in the circumstances.
Schedule
[13] Before the motion was argued, the parties were directed to discuss a schedule for the appeal in the event the moving party was successful. The parties have agreed on a schedule which is attached to and forms part of the Order.
[14] The parties are directed to contact the Divisional Court within one week to schedule the appeal.
Kristjanson J.
Date of Release: February 9, 2021
Corrected February 12: To amend the style of cause to show Mr. Belsito as counsel for Desco Plumbing and Heating Supply Inc./Les Grossistes En Plomberie et Chauffage Desco Inc. (Plaintiff/Responding Party) as well as for AVN Plumbing Limited and Angelo Saltarelli (Defendants/Responding Parties), and to amend paragraphs 1 and 12 accordingly.
CITATION: 690 King Street Corp. v. Desco Plumbing and Heating Supply Inc., 2021 ONSC 1050
DIVISIONAL COURT FILE NO: 601/20
DATE: 20210200
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Kristjanson J.
BETWEEN:
690 King Street Corporation
Defendant/Moving Party
– and –
Desco Plumbing and Heating Supply Inc./ Les Grossistes En Plomberie et Chauffage Desco Inc.
Plaintiff/Responding Party
-and-
AVN Plumbing Limited and
Angelo Saltarelli
Defendants/Responding Parties
ENDORSEMENT
Date of Release: February 9, 2021/Corrected February 12, 2021