CITATION: Carleton Condominium No. 28 v. Bassi Construction Ltd., 2022 ONSC 759
COURT FILE NO. CV-17-74327
DIVISIONAL COURT FILE NO.: 020/22
DATE: 20220214
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: CARLETON CONDOMINIUM CORPORATION NO. 28, Plaintiff
AND:
BASSI CONSTRUCTION LTD., TTF ENGINEERING INC., TERRY VIVYURKA, MESTEK CANADA INC. and MESTEK, INC., Defendants
BEFORE: Copeland J.
COUNSEL: Kathleen McDormand for the Plaintiff (Moving Party)
Stephen Cavanagh, for the Defendant (Respondent) Bassi Construction Ltd.
HEARD at Toronto (by videoconference): February 10, 2022
ENDORSEMENT
[1] The moving party, Carleton Condominium Corporation No. 28, seeks an extension of time to bring a motion for leave to appeal to the Divisional Court from an order of Justice Riopelle, dated August 3, 2021. The motion is opposed by the respondent Bassi Construction Ltd.
[2] In very brief terms, the reason the extension is sought is because the moving party mistakenly filed an appeal from the order of Justice Riopelle in the Court of Appeal, believing it to be a final order. Ultimately, the moving party came to agree with the respondent’s position that Justice Riopelle’s order was interlocutory, and the proper appeal route was with leave to the Divisional Court, pursuant to s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. I note that there is no dispute that the notice of appeal wrongly filed in the Court of Appeal was filed within the proper time period for appeals to the Court of Appeal.
[3] The test on a motion to extend time to bring a motion for leave to appeal is well-settled, and was stated by Gillese J.A. in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 at para. 15:
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 any 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.
Intention to appeal, length and explanation for delay
[4] The respondent concedes that the moving party always intended to appeal. I accept this concession. The moving party’s intention to appeal is clearly demonstrated by the filing of a notice of appeal in the Court of Appeal, and pursuit of the appeal, which only ceased when it came to accept that it had filed the appeal in the wrong court.
[5] The respondent submits that the moving party unreasonably stuck to the position that the order appealed from was final, not interlocutory, despite the respondent advising the moving party earlier of its position that the order was interlocutory. The respondent also relies on the total period of delay, of 145 days from the date of the order which is the subject of the propose motion for leave to appeal, until the notice of motion to extend time was filed.
[6] I am satisfied that the moving party has explained the delay. It filed in the wrong court. Although it did not accept immediately when the respondent took the position that the decision was interlocutory and the appeal was in the wrong court, I find that the moving party’s failure to immediately accept the opposing position does not undermine its explanation for the delay. Ultimately, the moving party accepted the position of the respondent that the appeal was not properly filed in the Court of Appeal, and consented to an order quashing the appeal in that court. The respondent has been aware of the moving party’s intention to appeal since the appeal was commenced in the Court of Appeal. In the circumstances, I find that the delay was not protracted or excessive.
Prejudice to the respondent
[7] The respondent submits that it would be prejudiced by the granting of an extension of time to file a motion for leave to appeal. The prejudice the respondent asserts is based on: (i) claims about the fairness of the underlying settlement; (ii) claims about the cost of litigating the motion under appeal; (iii) a claim that it has already acted on the order under appeal and amended its pleading; (iv) claims about the cost of the abortive appeal in the Court of Appeal; and (v) claims about the cost of a motion for leave to appeal in this court.
[8] I reject the respondent’s submission that it will be prejudiced in the sense relevant to a motion to extend time.
[9] In considering the issue of prejudice, the relevant consideration is not prejudice resulting from the progress of the actual appeal or motion for leave to appeal, but rather the prejudice that would be caused from the delay in filing the notice of appeal or motion for leave to appeal: 40 Park Lane Circle v. Aiello, 2019 ONCA 451 at para. 6.
[10] Categories (i) to (iii), and (v) of prejudice asserted by the respondent do not relate to prejudice caused by the delay in bringing the motion for leave to appeal. Rather, they are results of the underlying litigation or the motion for leave to appeal itself (not the delay).
[11] With respect to category (iv), the prejudice of the cost of the abortive appeal in the Court of Appeal, including bringing the motion to quash that the moving party ultimately consented to, that cost to the respondent has already been addressed by the settlement of costs of that motion in the Court of Appeal.
[12] I am satisfied that the respondent would not be prejudiced by the granting of an extension of time to file the motion for leave to appeal.
The Merits of the proposed application for leave to appeal
[13] The respondent submits that the proposed application for leave to appeal lacks merit. In its factum, the respondent submits that the moving party fails to “establish a prima facie case that the proposed appeal would be meritorious”. With respect, this submission proposes a higher standard for assessment of the merits than the case law supports on a motion to extend time to bring a motion for leave to appeal.
[14] In the context of a motion to extend time to seek leave to appeal, a court should only engage in a limited analysis of the merits of the proposed appeal. This Court has described the threshold as being “satisfied that the appeal has some merit”: Alaycheh v. Alaycheh, 2020 ONSC 6006 (Div. Ct.) at paras. 29, 33, 34.
[15] The order at issue relates to a motion seeking judgment on an accepted offer to settle. The grounds upon which the moving party proposes to seek leave to appeal raise issues of law in relation to the enforcement of settlements, and also issues of procedural fairness, where the moving party submits that the motions judge awarded relief to the respondent that had not been sought by it by way of cross-motion (leave to amend), and without providing an opportunity for submissions on that issue.
[16] The grounds upon which leave to appeal may be sought to the Divisional Court as set out in rule 62.02(4) are as follows:
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the panel hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the panel hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted.
[17] In this case, the moving party relies on the second branch of the test for leave. Under the second branch of the test for leave to appeal, the assessment of correctness by the leave panel does not involve deciding if the decision from which leave was sought was wrong; rather, the panel need only consider whether the correctness of the decision is open to very serious debate. The leave panel must also consider if the proposed appeal raises issues of general importance: Samuels v. Canada (Attorney General), 2016 ONSC 6706 (Div. Ct.) at para. 23; Ash v. Lloyd’s Corp, 1992 7652 (Gen. Div.).
[18] As I have outlined above, on this motion to extend time to bring a motion for leave to appeal, I am one step further removed from the questions a panel hearing a leave motion must decide. My task is to assess on a limited review of the proposed grounds for leave, whether the proposed appeal has some merit.
[19] I find that the proposed appeal meets that low threshold. The moving party has explained in some detail the proposed grounds on which it intends to seek leave in the factum filed on the motion. I find that those grounds of appeal have sufficient merit that the moving party should not be denied the opportunity to seek leave to appeal. This is particularly so where it is clear that the moving party always intended to appeal, which is shown by their having filed a notice of appeal in the court of appeal within the required time period.
The Justice of the Case
[20] Considering the factors I have outlined above, and all of the circumstances relating to the proposed motion for leave to appeal, I am satisfied that the justice of the case supports granting the extension of time to file the motion for leave to appeal. The moving party’s error about the appeal route should not deny it the opportunity to seek leave to appeal where it is clear that it always intended to appeal, there is no prejudice to the respondents, and there is some merit to the proposed motion for leave to appeal.
Conclusion
[21] The motion to extend time to seek leave to appeal is granted. The respondent shall pay costs to the moving party in the amount of $2,500.00, inclusive. This is an amount which I find is proportionate, fair, and reasonable in the circumstances.
[22] The applicant shall serve its notice of motion for leave to appeal on or before March 14, 2022. The respondent shall file its responding materials on the motion for leave to appeal on or before April 14, 2022.
Copeland J.
Date: February 14, 2022