Court File and Parties

CITATION: Peng v. Toronto Standard Condominium Corporation 1536, 2025 ONSC 1093

DIVISIONAL COURT FILE NO.: 649/24

DATE: 20250324

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: YIXING PENG, Plaintiff/Moving Party AND TORONTO STANDARD CONDOMINIUM CORPORATION 1536 Defendant/Responding Party

BEFORE: M.D. FAIETA J.

COUNSEL: Yixing Peng, on her own behalf Lucas J. Kittmer, for the Responding Party

HEARD: In-writing

Endorsement

FAIETA J.

[1] The Moving Party’s action for nuisance in the Toronto Small Claims Court was dismissed on June 19, 2024. The Moving Party did not produce any documents or witnesses for trial. In defending this action, the Respondent produced over 200 pages of documents. The court granted Judgment dismissing the action and ordered that costs of $3,500.00 be paid to the Responding Party. On July 11, 2024, the Moving Party filed a motion for a new trial in the Toronto Small Claims Court which was heard and dismissed on October 9, 2024. On October 24, 2024, the Moving Party emailed a Notice of Appeal to the Responding Party. On December 16, 2024, the Moving Party served a Notice of Motion seeking leave to extend the time to appeal the Judgment of the Small Claims Court decision.

[2] The Moving Party did not provide an affidavit nor a Factum despite being required by the Rules of Civil Procedure to do so and being directed by this Court to do so.

[3] In Javid Estate v. Watson, 2023 ONCA 665, at para. 3, K. van Rensburg J.A. stated:

On a motion to extend time under r. 3.02 of the Rules of Civil Procedure, the onus is on the moving party to establish the grounds for an extension. While each case depends on its own circumstances, the following factors are relevant: (1) whether the moving party had an intention to appeal within the relevant period (i.e. 30 days from the date of the order under appeal); (2) the length of, and explanation for, the delay in appealing; (3) prejudice to the responding party; and (4) the merits of the proposed appeal. The overarching principle is whether the justice of the case requires the extension of time.

Did the Moving Party have an Intention to Appeal within the Relevant Period?

[4] An appeal from a final order of the Small Claims Court shall be commenced by serving a notice of appeal within 30 days after the making of the order appealed from: Rule 61.04(1), Rules of Civil Procedure.

[5] There is no evidence that the Moving Party had a continuing intention to appeal from June 19, 2024, until she emailed the Responding Party her Notice of Appeal on October 24, 2024. The Moving Party did not notify the Responding Party that she intended to appeal the decision until October 24, 2024. This finding favours the Responding Party.

Length of, and Explanation for, Delay in Appealing

[6] The Moving Party did not file an affidavit to support the claim in her Notice of Motion that she waited for her motion for a new trial to be heard before commencing an appeal. This finding favours the Responding Party.

Prejudice to the Responding Party

[7] The Responding Party does not assert any discrete or specific prejudice beyond the inevitable frustration and cost associated with continued litigation. This factor can be assessed as neutral: Beazley v. Johnson, 2024 ONCA 430, at para. 72.

Merits of the Proposed Appeal

[8] The Moving Party raises three grounds of appeal. She submits that the Judgment contradicts itself. I have reviewed the Reasons for Judgment and do not find them contradictory. The Moving Party submits that the Deputy Judge made a procedural error by admitting documents that amounted to new evidence. However, the Moving Party admitted at trial that these documents were not “new” evidence. Finally, the Moving Party states that the Judgment is based on false oral evidence. The Moving Party did not object to such evidence at trial. I find that the Moving Party’s appeal lacks merit. This finding favours the Responding Party.

The Justice of the Case

[9] The justice of the case is the overarching consideration when it comes to deciding whether or not to grant an extension of time for appealing an order.

[10] Lack of merit alone can be a sufficient basis on which to deny an extension of time: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 at para. 16.

[11] In addition to not presenting any documents or witnesses trial, the Moving Party also chose not to file an affidavit in support of this motion in breach of the Rules of Civil Procedure and the Direction issued by Justice Davies on November 25, 2024.

[12] Justice is not served by permitting cases that lack merit to proceed particularly when the Moving Party has not adduced evidence in support of their whether at trial or on this motion for leave. The circumstances give the appearance that this motion was brought simply to delay the payment of costs ordered by the Small Claims Court.

[13] The motion for leave to extend the time for appeal is dismissed.

Costs

[14] I find that it fair and reasonable to order that costs of this motion in the amount of $1,000.00, inclusive of disbursements and taxes, be paid by the Moving Party to the Responding Party within 30 days.

M.D. Faieta J.

RELEASED: March 24, 2025