CITATION: Johnson v. Johnson, 2022 ONSC 3272
DIVISIONAL COURT FILE NO.: 148/22 DATE: 20220531
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
BRADLEY WILLIAM JOHNSON
Bradley William Johnson, self-represented
Appellant
– and –
ERIN KATHRYN JOHNSON
Stella Hines, for the Respondent
Respondent
HEARD at Toronto (by videoconference): May 31, 2022
Matheson J. (Orally)
[1] This is a motion to extend the time to appeal the decision of Justice Tranquilli dated October 12, 2021. That decision ordered the sale of the matrimonial home under the Partition Act.
[2] The moving party, Mr. Johnson, is also seeking other relief including a stay of the sale of the home which is scheduled to close in June 2022.
[3] The responding party submitted at the outset of the motion that this motion will be moot once the house sale has closed. The house sale has not closed. I therefore did not accept the submission that the motion is moot.
[4] I am going to give a brief chronology by way of background. Before I do so, I note that the moving party did file material but no sworn evidence. I have taken his factum, which is his account of the history, as the equivalent of his evidence on his motion. The responding party did not file any evidence and was only permitted to make submissions.
[5] By way of brief chronology, after the decision of Justice Tranquilli on October 12, 2021, the moving party served a notice of appeal to the Court of Appeal. He did so within the 30-day time period.
[6] In November 2021, the parties were before Justice Gorman in connection with the related family law proceedings. The moving party requested a stay of the decision of Justice Tranquilli pending his appeal to the Court of Appeal. Justice Gorman granted the stay until January 11, 2022, by which time there needed to be an update on the status of the appeal proceedings. That stay of proceedings was not extended.
[7] The appeal proceedings brought in the Ontario Court of Appeal were dismissed for delay.
[8] In or around the beginning of March 2022, the moving party attempted to reinstate his appeal in the Court of Appeal. At that time, he was told that the appeal ought to have been brought in the Divisional Court. As a result, his appeal was not reinstated.
[9] The moving party then commenced his appeal in the Divisional Court, giving rise to case management and this motion for an extension of time to appeal. The appeal proceedings in the Divisional Court were commenced shortly after the Court of Appeal indicated that it did not have jurisdiction.
[10] There was then a motion before Justice Gorman in the family proceedings, which took place on March 15, 2022. Justice Gorman ordered that the moving party immediately comply with the decision of Justice Tranquilli in relation to the sale of the home. Justice Gorman made related orders so that the sale proceeded immediately. That has taken place and there is now a binding Agreement of Purchase and Sale for the sale of the home with a closing date in June 2022.
Motion for extension of time
[11] I asked the Court office to provide the parties with a case authority with respect to the test for a motion for leave to extend time. The Court office did so by email yesterday, as follows:
1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, quoting Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15 -- the test on a motion to extend the time for the delivery of a notice of appeal is as follows:
The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:
(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;
(b) the length of, and explanation for, the delay in filing;
(c) any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and
(d) the merits of the proposed appeal.
[12] Each party has acknowledged receiving that information.
[13] I note that the first question for me is whether to grant an extension of time. If an extension is not granted, the other relief sought in the motion may not be addressed.
[14] One of the factors that I must consider is whether the moving party had a bona fide intention to appeal. I am satisfied that he did, having promptly brought an appeal to the Court of Appeal, having tried to reinstate it once dismissed, and then promptly commencing proceedings in the Divisional Court.
[15] There is definitely an issue with the length of delay. The delay has been since November 2021, when an appeal ought to have been commenced in the Divisional Court. However, that delay has been partly explained by the moving party. The problem with the moving party’s position is that he did not promptly pursue his appeal proceedings in the Court of Appeal, resulting in the dismissal of the appeal for delay. That is a relevant consideration.
[16] Moving to the merits of the appeal, Mr. Johnson’s main complaint about the decision of Justice Tranquilli is that he hoped to negotiate a buyout of the property and thought more time should have been allowed for the negotiation and a settlement to take place. He wanted to buy the house.
[17] The moving party acknowledges the position of the respondent that the Court could not order or force the parties to settle. Essentially, his position is that more time should have been allowed for that possibility to take place and, if it did not take place, a more complete consideration of all the factors. How much time the Court should allow parties to negotiate is a highly discretionary matter. If that is the key to the appeal, it casts doubt on the merit of the appeal.
[18] Having said that, the most important factor in this case is the question of prejudice. As of today, there is a binding Agreement of Purchase and Sale for the property. It is unconditional. If the appeal is permitted to proceed, one of two things will happen – it will either become moot when the sale closes to a third-party purchaser for value without notice, or a stay of proceedings would have to be granted by the Court to prevent that outcome.
[19] A stay of proceedings at this time would not be a solution to a legally binding agreement with a third party in that the third party has not been given notice of this motion and is not before me today. Further steps would be required. I must consider the prejudice that will arise if the agreement is breached, which would include not only financial consequences but potential litigation. Those are very serious consequences.
[20] I then move to the overall justice of the case. I bear in mind all of the submissions of both sides. I conclude that, after considering everything, the overall justice of this case requires that I not grant the extension of time.
[21] I therefore dismiss the request for an extension of time and do not need to address the other requested relief that may have been relevant if an extension had been granted.
[22] There shall be no order as to costs.
___________________________ Matheson J.
Date of Oral Reasons for Judgment: May 31, 2022
Date of Written Release: June 1, 2022
CITATION: Johnson v. Johnson, 2022 ONSC 3272
DIVISIONAL COURT FILE NO.: 148/22 DATE: 20220531
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
BRADLEY WILLIAM JOHNSON
Appellant
– and –
ERIN KATHRYN JOHNSON
Respondent
ORAL REASONS FOR DECISION
Matheson J.
Date of Reasons for Judgment: May 31, 2022
Date of Written Release: June 1, 2022