Court File and Parties

CITATION: Neil v. Gayle, 2025 ONSC 4030 DIVISIONAL COURT FILE NO.: 160/25 DATE: 2025-07-07

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Annetta Neil, Moving Party AND: Royan Gayle, Responding Party

BEFORE: Justice O’Brien

COUNSEL: Annetta Neil, Self-Represented Royan Gayle, Self-Represented

HEARD: Motion in-writing

Endorsement

[1] Ms. Neil brings a motion for an extension of time to file a motion for leave to appeal the costs order of Rhinelander J. dated October 1, 2024. The order arose from a parenting time motion before Rhinelander J., which was adjourned several times and ultimately resulted in a temporary without prejudice parenting time agreement.

[2] Ms. Neil was required by r. 61.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to serve her notice of motion within 15 days after the making of the order and to file the notice of motion within five days after service. She instead served and filed her notice of motion on October 29, 2024.

[3] The test for granting an extension of time is well-established. As set out in Enbridge Gas Distribution v. Froese, 2013 ONCA 131, at para. 15, the overarching principle is whether the justice of the case requires that an extension be given. The court will take into account all relevant considerations including the following:

(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 party caused, perpetuated or exacerbated by the delay; and

(d) The merits of the proposed appeal.

[4] In this case, Ms. Neil has satisfied the first three elements of the test. She had a bona fide intention to appeal within the 15 days. She communicated with the Court of Appeal within that time, on October 15, 2024, to inquire about how to appeal the order. She also has a good explanation for the delay. She first contacted the Court of Appeal and was informed she needed to file her appeal with the Divisional Court. She says Divisional Court staff told her she had 30 days to file a notice of appeal. This is generally the correct timeline for filing a notice of appeal, but Ms. Neil was not aware that she needed leave to appeal the costs order. Motions for leave to appeal must be brought within the shorter 15-day period. Ms. Neil is self-represented and this mistake was understandable. In addition, the length of the delay until the time Ms. Neil served her notice of appeal (even though this was not the correct document) was short – less than two weeks.

[5] With respect to the third consideration, Mr. Gayle has not asserted any prejudice arising from the short delay and no prejudice is apparent.

[6] However, as stated by Gillese J.A. in Enbridge Gas, at para. 16: “In my view, 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 to file a notice of leave to appeal, rather than an extension of time to file a notice of appeal.”

[7] Leave to appeal from costs orders is granted sparingly and only where the order is tainted by palpable and overriding error or error of law: Shaulov v. Law Society of Ontario, 2023 ONCA 95, at para. 24; Kramshoj v. Kramshoj, 2024 ONSC 6251, at para. 11.

[8] Ms. Neil has not identified any error that has any likelihood of meeting this test. In her notice of motion, she states only that there is merit to the proposed appeal without explaining why. In her factum, she states that the costs order was excessive and there is good reason to doubt the correctness of the order. She does not state any reason for doubting the correctness of the order, other than that the costs were excessive.

[9] Costs orders, including the quantum of costs, are highly discretionary. In this case, Justice Rhinelander was familiar with the case, as she presided over four attendances related to the parenting motion. She awarded costs that were lower than the amount sought by the successful party. Although Ms. Neil considers the costs award to have been excessive, she has not identified any error of law or palpable and overriding error that could ground a successful motion for leave to appeal. I am sympathetic to the reasons for Ms. Neil filing her material late, but the lack of merit to her motion for leave to appeal is determinative. Given the absence of merit, the overall justice of the case does not weigh in favour of granting an extension of time.

[10] Therefore, the motion is dismissed.

[11] Both parties represented themselves on the motion. Mr. Gayle is the successful party but has not requested costs of the motion in this court. No costs are ordered.

O’Brien J.

Released: July 7, 2025