Kramshoj v. Kramshoj, 2024 ONSC 6251

Court File and Parties

BARRIE COURT FILE NO.: CV-24-559 DATE: 20241112 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOHNATHAN KRAMSHOJ, Applicant/Proposed Appellant AND: ROBERTA LEIGHANN KRAMSHOJ and AMANDA MARGARET RENAUD, Respondents/Respondents

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

COUNSEL: Debora Lyons, Counsel for the Applicant/Proposed Appellant, Johnathan Kramshoj Jeffery Beleskey, Counsel for the Respondent, Roberta Leighann Kramshoj Owen Thompson, Counsel for the Respondent, Amanda Margaret Renaud

HEARD: In Writing

Endorsement

[1]

Background

On October 15, 2024, I issued an Endorsement in this matter, quashing the Notice of Appeal filed by the Applicant, Johnathan Kramshoj: Kramshoj v. Kramshoj, 2024 ONSC 5720.

2Briefly, on August 27, 2024, the Applicant filed a Notice of Appeal in the Divisional Court to appeal the Costs Order of Smith J. dated July 22, 2024, in which Smith J. ordered Mr. Kramshoj to pay $8,500 costs on a partial indemnity basis to the Respondent, Amanda Renaud, and $9,000 costs on a partial indemnity basis to the Respondent Roberta Kramshoj.

3Pursuant to s. 133(b) of the Courts of Justice Act, “No appeal lies without leave of the court to which the appeal is to be taken where the appeal is only as to costs that is in the discretion of the court that made the order for costs”. The Proposed Appellant did not serve a Notice of Motion for Leave to Appeal as required by Rules 61.03 and 62.02 and was never granted leave to appeal.

4In addition, motions for leave to appeal must be served within 15 days after the making of the Order from which leave to appeal is sought: Rule 61.03(b). The Proposed Appellant did not comply with this time requirement.

5At paras. 17 and 19 of the Endorsement I gave the following direction:

Since the Proposed Appellant did not serve his motion for leave to appeal within 15 days of the Order from which leave to appeal is sought, he must first bring a motion for an extension of time to bring a motion for leave to appeal. This motion must be brought before he can bring a motion for leave to appeal, and will be heard by a single judge of the Divisional Court.

The Court has the discretion to extend the time to bring a motion for leave to appeal: r. 2.03 of the Rules of Civil Procedure and Shiewitz v. Shiewitz, 2023 ONSC 1491, at para. 16. The test on an extension motion is:

(a) whether the moving party formed an intention to seek leave to appeal within the relevant time. (b) the length of and explanation for the delay. (c) prejudice to the Respondent. (d) the merits of the appeal. (e) whether the justice of the case requires granting an extension.

In order to expedite this matter, if the Applicant chooses to bring a motion for an extension of time to bring a motion for leave to appeal, I will hear that motion in writing pursuant to Rule 37.12.1.

[6]

Analysis

In accordance with that Endorsement, on October 25, 2024 the Proposed Appellant served and filed a Notice of Motion for Extension of Time to bring a motion for Leave to Appeal the Costs Order of Smith J.

[7]

Explanation for Delay

The motion for an extension of time is supported by the affidavit of Johnathan Kramshoj. In his affidavit, Mr. Kramshoj states that he and his lawyer knew that leave to appeal was required to appeal from the costs order of Smith J., but they thought that the Respondent in Appeal (the Plaintiff Amanda Margaret Renaud) was going to hire a new lawyer, and Mr. Kramshoj “wanted to allow time for the new lawyers to become involved so as to not have to repeat efforts and incur more legal fees”.

8That explanation makes no sense. The 15 day time limit in Rule 61.03(b) is very clear, and it makes no sense that the Proposed Appellant was aware of that time limit but thought that it would be more efficient and reduce legal fees to miss the time limit and attempt to file a Notice of Appeal without first seeking leave to appeal. If the Proposed Appellant wanted to seek leave to appeal Smith J.’s Costs Order, he should have brought his motion for leave to appeal within 15 days. As matters stand, he did not even meet the 30 day time limit for filing an appeal: Rule 61.04(1). If the Respondent in Appeal required more time to respond to a motion for leave to appeal because she was retaining new counsel, the onus would have been on her to request an extension of time to respond. The Proposed Appellant cannot blame his delay on the Respondent in Appeal.

[9]

Prejudice

An extension of time to bring the motion will prejudice the Respondents in this matter. The Costs Order provided that costs were to be paid within 30 days, which made the costs payable on or before August 21, 2024. They have still not been paid. This is a continuing proceeding; Justice Smith established a timetable for the remaining steps in the litigation, including the exchange of affidavits of documents and examinations for discovery. The Respondents continue to incur legal fees. It is highly prejudicial to the Respondents to deny them the costs ordered while this litigation continues.

10It is significant that the Proposed Appellant did not even file the Notice of Appeal until after the Respondents sent a letter demanding that the costs be paid within 30 days as ordered by Smith J. The Proposed Appellant then filed the Notice of Appeal and, wrongly, took the position that the Notice of Appeal stayed the enforcement of Smith J.’s Costs Order. Since the Notice of Appeal was invalid, it could not stay the Costs Order.

[11]

Merits of the Appeal

The presence or absence of merits of an appeal may be dispositive on a motion to extend time: MacMillan v. Klug, 2024 ONSC 1125, at para. 12. “It is well-established that leave to appeal costs is granted sparingly and only where the order is tainted by palpable and overriding error or error of law”: Carroll (Litigation Guardian of) v. McEwen, 2018 ONCA 902, at para. 58; Shaulov v. Law Society of Ontario, 2023 ONCA 95, at para. 24.

12The Proposed Appellant’s proposed grounds for appeal are very general and do not disclose anything that could be described as a “palpable and overriding error or error of law”.

[13]

Conclusion

For these reasons, the justice of the case does not require granting an extension of time, and the motion to extend time is dismissed.

[14]

Costs

If the parties are not able to agree on costs, the Responding parties may file costs submissions of not more than 3 pages plus costs outline and any offers to settle, within 20 days of the release of this Endorsement, and the Proposed Appellant may file responding submissions on the same basis within a further 15 days.