Court File and Parties

CITATION: Froom v. Lafontaine, 2024 ONSC 1677

DIVISIONAL COURT FILE NO.: 638/23

DATE: 2024-03-20

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Arthur Froom, Appellant AND: Sonia Lafontaine, Respondent

BEFORE: Justice O’Brien

COUNSEL: A. Froom, Self-Represented H. K. Juriansz, Counsel for the Respondent

HEARD: Motion In-Writing

Endorsement

[1] The moving party Mr. Froom has brought a motion for an extension of time to seek leave to appeal three decisions of Faieta J. In an initial endorsement dated March 18, 2024, I indicated that the motion was dismissed with reasons to follow. These are those reasons.

[2] Mr. Froom and Ms. Lafontaine are parties in two underlying proceedings that have been consolidated. The first is a family law application. I will refer to the second as the “mortgage action.” It was brought by a plaintiff named Robin Seligman against Ms. Lafontaine. Ms. Lafontaine then brought a third-party clam against Mr. Froom.

[3] Mr. Froom served a Statement of Defence and Counterclaim to the third-party claim. Ms. Lafontaine’s lawyers thought there were various issues with this pleading and questioned whether it had been accepted for filing. They advised Mr. Froom that they intended to bring a motion to strike it. Mr. Froom subsequently noted Ms. Lafontaine in default with respect to the Counterclaim.

[4] On May 18, 2023, Ms. Lafontaine brought several motions before Faieta J. seeking the relief including: (1) setting aside the noting in default; (2) seeking to strike Mr. Froom’s Statement of Defence and Counterclaim with leave to amend; and (3) for the provision of disclosure, failing which Mr. Froom’s pleadings in the family law proceeding should be struck.

[5] In an endorsement dated September 26, 2023, Faieta J. ordered that the noting in default be set aside and that Mr. Froom’s Statement of Defence and Counterclaim be struck with leave to deliver a new one. Faieta J. adjourned the motion to strike Mr. Froom’s pleading in the family law proceeding and provided him an opportunity to provide further disclosure.

[6] On October 10, 2023, the parties appeared before Faieta J. for a case conference. The case conference addressed issues related to the mortgage as well as Mr. Froom’s outstanding financial disclosure in the family law proceeding. Mr. Froom sought among other things to postpone the delivery of his outstanding financial disclosure and the return of the motion to strike his pleadings. Faieta J. extended the time for Mr. Froom to provide disclosure by an additional week.

[7] On October 20, 2023, the parties attended a further case conference before Faieta J. that was primarily directed at issues related to the mortgage action. Mr. Froom made submissions and sought relief that Faieta J. described as “outside the scope of today’s conference” related to costs of the motion to strike his pleadings. Faieta J. noted that whether costs should be ordered related to that matter should have been addressed in the costs submissions that were due on October 10, as directed in the September 26 endorsement.

[8] Mr. Froom served his notice of motion seeking leave to appeal the September 26 endorsement on November 3, 2023. On November 7, 2023, he delivered a revised motion record that sought leave to appeal the October 10 and 20 endorsements as well. Rule 61.03(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires a party to serve a notice of motion for leave to appeal within 15 days of the making of the decision from which leave to appeal is being sought.

[9] Mr. Froom made numerous submissions in his factum on this motion, which I summarize as follows:

a. Mr. Froom offered to consent to the noting in default upon receipt of a draft Statement of Defence. He did not accept counsel’s explanation that he believed the Statement of Defence and Counterclaim had not been accepted for filing by the court.

b. Mr. Froom always intended to appeal the September 26 endorsement but thought the time to file a motion for leave to appeal started after the court made a decision regarding costs. He also believed he had 30 days rather than 15 days.

c. The motion judge did not address all issues related to the setting aside of the noting in default under rr. 19.03 and 19.08.

d. Ms. Lafontaine took more than 24 months to bring a motion to set aside the noting in default and the motion judge failed to address this delay.

e. Ms. Lafontaine had no meritorious defence to the counterclaim. The motion judge failed to address this.

f. Mr. Froom believed the motion judge was required to address all his arguments before the time for seeking leave to appeal would start.

g. The motion judge relied on rr. 21 and 25 rather than r. 19.03 and 19.08.

h. The motion judge did not specify which paragraphs in his pleading should be amended.

Legal Principles

[10] When considering whether to grant an extension of time, the overarching principle is whether the justice of the case requires it. The court will consider all the circumstances of the case, 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.

828343 Ontario Inc. v. Demshe Forge Inc., 2022 ONCA 412, at para. 21

[11] The decisions Mr. Froom seeks to challenge are interlocutory and require leave of this court before they may be appealed. The test for granting leave to appeal is strict. Leave to appeal is not easily granted. As set out in r. 62.02(4), leave to appeal shall not be granted unless:

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 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.

Analysis

First and Second Considerations

[12] Ms. Lafontaine submits that Mr. Froom did not have a bona fide intention to appeal within the relevant time frame. She emphasizes that he is an experienced, albeit self-represented, litigant and should have been able to determine that he had 15 days to seek leave to appeal. In her submission, his explanation about waiting for the costs decision does not make sense, since the costs decision had not been issued when he ultimately filed his notice of motion.

[13] In my view, although Mr. Froom has raised various sources of possible confusion, he has not demonstrated he had a bona fide intention to appeal during the 15-day time period. However, the delay was not excessive and there was some basis for confusion, both as a self-represented litigant and considering the subsequent attendances before Faieta J. I would not dismiss the motion based on these factors.

Third Consideration - Prejudice

[14] Ms. Lafontaine submits in high conflict litigation, an extension of time should not be granted since an appeal would cause the parties to devote further time and expense to an interlocutory issue when various issues remain to be determined on a final basis at trial: MacMillan v. Klug, 2024 ONSC 1125, at para. 16.

[15] Although this does not demonstrate specific prejudice caused by the delay in filing the notice of motion, I agree it is a factor weighing against Mr. Froom with respect to the overall justice of the case. In his October 10 endorsement, the motion judge, who was heavily involved in managing this case, raised specific concerns about delay. As Ms. Lafontaine has emphasized, the family law proceeding was started in 2013. Pursuant to an endorsement in 2022, Mr. Froom was required to set the matter down for trial by December 29, 2023. This date is now well past, and the matter has not been set down for trial. In these circumstances, avoiding further delay should be prioritized.

Fourth Consideration - Merits

[16] The primary basis on which I deny an extension of time is that the motion for leave to appeal has little merit. The Court of Appeal has stated that “lack of merit alone can be a sufficient basis on which to deny an extension of time, particularly in cases such as this where the moving party seeks an extension of time to file a notice of leave to appeal, rather than an extension of time to file a notice of appeal”: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 16; Hughes v. Hughes, 2021 ONSC 4497, at para. 21.

[17] Setting aside a noting in default is a discretionary decision that balances a number of factors. The motion judge listed the relevant factors and addressed those that were of most importance in this case. He was influenced, for example, by Mr. Froom’s behaviour. The motion judge found that Mr. Froom noted Ms. Lafontaine in default in a manner that, if he had been represented, would have constituted “sharp practice.” The motion judge also addressed the question of delay, stating that it was caused by the consolidation of the two proceedings and the focus on resolving the mortgage action.

[18] The Court of Appeal has emphasized that a motion judge is entitled to considerable deference in the exercise of his discretion on a r. 19.08 motion: Hill v. Forbes, 2007 ONCA 443, at para. 4. Although Mr. Froom has provided various decisions with different outcomes, he has not identified any decisions conflicting with the motion judge’s endorsement in principle. He also has not raised a good reason to doubt the correctness of the motion judge’s decision.

[19] Mr. Froom further has not demonstrated any basis on which a panel of this court would doubt the correctness of the motion judge’s decision to strike his pleadings with leave to provide a new pleading. He also has not identified any principle in the decision on that issue that conflicts with other cases.

[20] Finally, Mr. Froom has not provided any persuasive submissions on why this matter involves issues of such importance that leave should be granted. Although the issues in the case are significant to the parties, the motion judge’s endorsement are specific to the circumstances between the parties and do not raise issues of broader importance.

[21] Accordingly, I see no merit to the proposed motion for leave to appeal.

Justice of the Case

[22] Given the lack of merit to the proposed motion for leave to appeal and the need for this matter to move forward to trial without further delay, the justice of the case does not favour granting an extension of time.

Conclusion

[23] The motion therefore is dismissed.

[24] As the successful party, Ms. Lafontaine is entitled to her costs, which I fix at $3,500 all-inclusive.

O’Brien J

Date: March 20, 2024