Court File and Parties

CITATION: Contardi v. Contardi, 2024 ONSC 1180

OSHAWA DIVISIONAL COURT FILE NO.: DC-24-1515-00ML

DATE: 2024-02-26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARCO CONTARDI, Applicant (Appellant)

AND:

SONIA LISBOA CONTARDI, Respondent (Respondent in Appeal)

BEFORE: The Hon. Mr. Justice R.E. Charney

COUNSEL: Patrice A.J. Cote, Counsel for the Applicant (Appellant)

Mark Greenstein and Ian J. Krol, Counsel for the Respondent (Respondent in Appeal)

HEARD: In-Writing

ENDORSEMENT

[1] The Applicant, Marco Contardi, seeks an extension of time in which to file a motion for leave to appeal the interlocutory order of Jarvis J., made on November 27, 2023.

[2] In this Order, Jarvis J. struck Mr. Contardi’s pleadings. The Order permits Mr. Contardi to have his pleadings reinstituted on the following terms:

Should the applicant move to have his pleadings reinstituted he must first obtain leave of this court on motion to the respondent and in support of that request he must provide to the court satisfactory evidence that he has not only paid all costs awards but also satisfied his outstanding disclosure obligations.

[3] The issue on this motion is whether the extension of time to file a motion for leave to appeal should be granted.

[4] Mr. Contardi states in his affidavit in support of the motion that his former lawyer did not receive the Order from the Court until December 28, 2023, and did not forward the Order to him until January 3, 2024.

[5] Pursuant to Rule 61.03 of the Rules of Civil Procedure, a motion for leave to appeal an interlocutory order to the Divisional Court must be served within 15 days after making of the Order.

[6] Even accepting Mr. Contardi’s explanation for not receiving the Order until January 3, 2024, his motion for leave to appeal should have been served by January 18, 2024. His motion for an extension of time in which to file a motion for leave to appeal was filed on February 9, 2024.

[7] Mr. Contardi’s affidavit states that he has now paid all costs awards, but that he is unable to comply with the outstanding corporate disclosure obligations because he has no interest in these corporations. He needs to appeal Jarvis J.’s decision, which, he argues, puts him in a catch-22 position: the Order precludes him from bringing a motion to obtain the corporate disclosure until he has produced the corporate disclosure.

[8] Mr. Contardi contends that immediately after receiving the Order, he discussed his intention of appealing it with his current lawyer and was advised by his current lawyer that, without his file, his lawyer could not assess the merits of an appeal.

[9] His current lawyer made several efforts to obtain Mr. Contardi’s file from his previous lawyer. On the date of Mr. Contardi’s affidavit (February 9, 2024) the file had still not been received.

[10] The Respondent opposes the request for an extension of time to bring a motion for leave to appeal. She argues that the issue of corporate disclosure was addressed by the parties in a long motion heard by Jarvis J. on June 14, 2023. All parties, and the corporate non-parties, attended the hearing. The corporate non-parties were: Grande Cheese Company Limited, 1901908 Ontario Ltd., 1958700 Ontario Inc., Negozio 522 Ltd. (O/A Alimento). Also in attendance was the Applicant’s mother, Angela Contardi. All were represented by counsel. The parties and non-parties agreed to a Consent Order in respect of the enumerated corporate disclosure (the Corporate Disclosure Order). Para. 2 of the Corporate Disclosure Order requires the non-parties to “cooperate with and facilitate the production of the disclosures outlined” in the Order.

[11] That consent Corporate Disclosure Order of June 14, 2023 outlined the corporate disclosure that was the subject of Jarvis J.’s November 27, 2023 Order.

[12] The Applicant did not seek leave to appeal from the June 14, 2023 Corporate Disclosure Order. That ship has sailed.

[13] Jarvis J.’s November 27, 2023 Order simply reaffirms the Applicant’s disclosure obligations from June 14, 2023, and sets out the consequences for his failure to comply.

[14] There is nothing in Jarvis J.’s November 27, 2023 Order to prevent Mr. Contardi from taking steps to enforce the Order against the non-parties to bring himself into compliance with the June 14, 2023 Order.

Analysis

[15] This Court can extend time to appeal under Rule 3.02 of the Rules of Civil Procedure when it considers it just to do so. The onus is on the moving party to establish the grounds for an extension: Teitler v. Dale, 2021 ONCA 577, at para. 7. The governing principle is whether the justice of the case requires that an extension be given: Canadian Western Trust Co. v. 1324789 Ontario Inc., 2021 ONCA 23, at para. 24.

[16] On a motion for leave to extend the time to bring a motion for leave to appeal, the court should consider:

(a) Whether the moving party formed an intention to appeal within the relevant period;

(b) The length of the delay and the explanation for it;

(c) The prejudice to the responding party; and

(d) The merits of the appeal.

See: Van de Kerckhove v. Wagner, 2022 ONSC 5780, at paras 10-11; Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 554, at para 2; MacMillan v. Klug, 2024 ONSC 1125, at para. 7.

[17] For the purposes of this analysis, I accept the Applicant’s evidence that he did not receive the November 27, 2023 Order until January 3, 2024, and that the time period before that date should not be counted against him.

[18] I also accept the Applicant’s assertion that he discussed his intention of appealing the Order with his current lawyer immediately after receiving it.

[19] I am less persuaded by the assertion that his current lawyer told him not to serve his motion for leave to appeal until after he could review the file. Given that the deadline for service under Rule 61.03 was, at the latest, January 18, 2024, that was very a risky strategy. If a motion for leave to appeal was being contemplated, it would have been a simple enough matter to serve a Notice of Motion for Leave to Appeal by January 18, 2024, out of an abundance of caution, rather than trying to bring a motion for an extension of time.

[20] The Respondent submits that there is prejudice to granting the motion. She will be required to respond to the motion for leave to appeal in a litigation context that reveals the Applicant’s disregard for court deadlines and his responsibility to comply with Court orders. This disregard has been the subject of previous judicial comment and costs orders.

[21] The presence or absence of merits of an appeal may be dispositive on a motion to extend time: MacMillan, at para. 12. Obtaining leave to appeal an interlocutory order requires meeting the test found in Rule 62.02(4), of the Rules of Civil Procedure, which requires that an appellant establish:

(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 desirable that leave to appeal be granted; or

(b) there appears to be 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.

[22] It is particularly difficult to obtain leave to appeal interlocutory orders in family law matters given that it is desirable to move these proceedings along given their subject matter and impact on families: Lokhandwala v. Khan, 2019 ONSC 6436, at para. 5; MacMillan, at para. 13.

[23] The proposed appeal is unlikely to satisfy the test for leave. The Applicant’s materials identify no conflicting decisions. His proposed appeal does not raise questions of broad significance or of general application that affect the development of the law and the administration of justice. There is no good reason to doubt the correctness of the November 27, 2023 Order.

[24] The Applicant’s primary complaint relates to the June 14, 2023 Corporate Disclosure Order which is not the subject matter of his proposed motion for leave to appeal. If the Corporate Disclosure Order is his real concern, his efforts would be better directed at a motion to enforce that Order against the non-parties. Seeking leave to appeal the November 27, 2023 Order appears to be a collateral attack on the June 14, 2023 Order.

[25] Finally, as Leiper J. stated in MacMillan, at para. 16:

In high conflict family litigation, the courts have found that an extension of time may not be appropriate where the appeal will cause the parties to devote further time and expense to an appeal of a temporary order, when the issues remain to be determined on a final basis at trial: see Hassan v. Dahroug, 2022 ONSC 5506 at para. 21; Van de Kerckhove v. Wagner, 2022 ONSC 5780, at paras. 20, 23.

[26] I conclude that, although the delay is not lengthy, prejudice to the Respondent and the justice of the case outweigh this factor, and the motion for an extension of time is dismissed.

[27] The Respondent seeks costs in the amount of $17,964 on a substantial indemnity basis. That amount is, in my view, excessive for a motion for an extension of time that was heard in writing. Costs are awarded in favour of the Respondent, Ms. Contardi in the amount of $5,000 all inclusive, payable within 45 days.

Justice R.E. Charney

Date: February 26, 2024