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Court of Appeal Summaries (February 22-25, 2022) – Lexology

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Good evening.
Following are this week’s summaries of the civil decisions of the Court of Appeal for Ontario for the week of February 22, 2022.
In Krause v. Bougrine, the Court found that an Ontario court has jurisdiction under section 21 of the Interjurisdictional Support Orders Act to order child support in the face of a valid but unenforceable (in Ontario) foreign child support Order. Section 21 specifically empowers an Ontario court to hear a new support application that takes into account the unenforceable foreign order as well as other information the court considers necessary in order to make a new support order.
In Johnson v. Ontario, the Class Action Clinic at the Windsor Law School was granted leave to intervene in a class action appeal involving the refusal to grant a class member an extension of time to opt out of a class proceeding. The Clinic is a non-profit legal service that, under the direction of professor Jasminka Kalajdzic, who has recognized expertise in class actions, and with the contribution of University of Windsor law students, provides public legal education, assistance in serving the rights and needs of class members, and policy analysis and empirical research on various class action issues. The Clinic was granted leave to file a 20-page factum and to make 10 minutes of oral submissions. One of the grounds for granting the Clinic intervener status was the quality of the draft factum that it filed with its motion materials.
Other topics covered were spousal and child support, a family dispute over the ownership and sale of a house under the Partition Act, and the refusal of an extension of time to seek leave to appeal in a case involving the failure to close under an agreement of purchase and sale of land.
Table of Contents
Civil Decisions
Johnson v. Ontario , 2022 ONCA 162
Keywords: Civil Procedure, Class Proceedings, Interveners, Friends of the Court, Class Proceedings Act, 1992, S.O. 1992, Chapter 6, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., (1990), 74 O.R. (2d) 164 (C.A.), Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270
Krause v. Bougrine, 2022 ONCA 161
Keywords: Family Law, Child Support, Civil Procedure, Foreign Orders, Enforcement, Jurisdiction, Statutory Interpretation, Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13, Ont. Reg. 53/03 – Reciprocating JurisdictionsFamily Law Act, R.S.O. 1990, c. F.3, Cheng v. Liu, 2017 ONCA 104, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65
Inniss v. Blackett, 2022 ONCA 166
Keywords: Real Property, Partition and Sale, Unjust Enrichment, Constructive Trust, Resulting Trust, Partition Act, R.S.O. 1990, c. P.4., Housen v. Nikolaisen, 2002 SCC 33, Pecore v. Pecore, 2017 SCC 17, Karen Patterson et al. v. Nadeen Patterson and The Estate of Barbara Patrick, 2018 ONSC 6884, Davis v. Davis, [1954] O.R. 23 (C.A.), Brienza v. Brienza, 2014 ONSC 6942
Hendriks v. Hendriks, 2022 ONCA 165
Keywords: Family Law, Spousal Support, Child Support, Orders, Variation, Material Change in Circumstances, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 15.2(4), 17(7), Hickey v. Hickey, [1999] 2 S.C.R. 518, Rebenchuk v. Rebenchuk, 2007 MBCA 22, Bracklow v. Bracklow, [1999] 1 S.C.R. 420, L.M.P. v. L.S., 2011 SCC 64, Gray v. Gray, 2014 ONCA 659, Slongo v. Slongo, 2017 ONCA 272,  Wharry v. Wharry, 2016 ONCA 930
Lamba v. Mitchell, 2022 ONCA 164
Keywords: Civil Procedure, Appeals, Leave to Appeal, Extension of Time, Leave to Courts of Justice Act, RSO 1990, c C43, s. 6(1)(a), Rules of Civil Procedure, R. 3.02(1) and 61.03.1(3), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Reid v. College of Chiropractors of Ontario, 2016 ONCA 779, Krawczynski v. Ralph Culp and Associates Inc., 2019 ONCA 399, Sault Dock Co. v. Sault Ste. Marie (City) (1973)34 D.L.R. (3d) 327 (Ont. C.A.), Ravelston Corp. (Re) (2005), 24 C.B.R. (5th) 256, (Ont. C.A.)
CIVIL DECISIONS
Johnson v. Ontario, 2022 ONCA 162
[Paciocco J.A. (Motion Judge)]
COUNSEL:
M. Sharp and N. S. Barkhordari, for the appellant
R. Bambers and L. Brost, for the respondent Her Majesty the Queen in right of Ontario
C. Smith, for the respondents G. J., M. S., and T, H,
A. Eckart, for the proposed intervener The Class Action Clinic, University of Windsor, Faculty of Law
Keywords: Civil Procedure, Class Proceedings, Interveners, Friends of the Court, Class Proceedings Act, 1992, S.O. 1992, Chapter 6, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., (1990), 74 O.R. (2d) 164 (C.A.), Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270
FACTS:
This was a motion to intervene as a friend of the Court by The Class Action Clinic, University of Windsor, Faculty of Law (the “Clinic”), and relates to an appeal by D. P. of an unsuccessful motion for an extension of time to opt out of a class action. That class action was certified on behalf of persons incarcerated at the Elgin Middlesex Detention Centre between January 1, 2010 and May 18, 2017, against Ontario, and alleges a failure to provide medical care for inmates.
After the opt-out date for the class action had passed, D. P. filed a lawsuit against Ontario for delay in providing him with medical care while an inmate at the Elgin Middlesex Detention Centre, including during the period encompassed by the class action. In a letter accompanying its notice of intent to defend, Ontario referred to the class action and suggested that D. P. should discontinue his claim or limit it to the period outside of the class action. D. P. deposed that he was unaware of the class action when he instituted the action and upon learning about it, he brought a motion to extend the time to opt out of the class action. The motion judge dismissed the motion and ordered costs against D. P.
None of the parties opposed the Clinic’s motion to intervene, but disagreed relating to the timing of the delivery of responding facta, and the time for oral argument. D. P.’s consent was contingent on an intervention order not delaying the scheduled appeal. Ontario’s consent was contingent on the Clinic’s intervention being without prejudice to Ontario’s argument that if the adequacy of notice is recognized to be a factor to be considered in applications for extension of time to opt-out, that factor should not be applied during D. P.’s appeal because the adequacy of notice was not an issue before the motion judge, nor on appeal. D. P. disputed Ontario’s position, but did not take issue with a neutral recital being made in the intervention order alerting the panel to the fact that this was an open issue.
ISSUE:
(1) Should the Clinic be permitted to intervene as a friend of the Court in the appeal?
HOLDING:
Motion granted.
REASONING:
(1) Yes.
The Clinic will be able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.
First, the Clinic will argue issues that transcend the interests of the parties in this public dispute and the proposed submissions do not simply repeat submissions that will be made by the parties.
Second, the Clinic has the experience and expertise to provide useful submissions. It is a non-profit legal service that, under the direction of a legal scholar with recognized expertise in class actions and with the contribution of University of Windsor law students, provides public legal education, assistance in serving the rights and needs of class members, and policy analysis and empirical research on various class action issues.
Third, the parties received advance notice of the Clinic’s intention to intervene and were provided with a draft factum reflecting the essence of the submissions the Clinic proposed to make. None of the parties opposed the intervention. Granting this motion will not delay the appeal. The intervention will not prejudice Ontario’s right to make the argument it chooses relating to adequacy of notice, and the Clinic will not be at liberty to apply for the admission of additional evidence.
The Clinic sought leave to file a 20-page factum, to be served electronically, and 15 minutes for oral submissions at the hearing. The Clinic’s draft factum was 15 pages, concise, and clear. Given the quality of the factum, the Court was satisfied that oral submissions can be made expeditiously and efficiently on behalf of the Clinic at the hearing in 10 minutes. All parties were entitled to file a 10-page responding factum. D. P. and Ontario were each granted 10 additional minutes for oral argument.
Krause v. Bougrine, 2022 ONCA 161
[MacPherson, van Rensburg and Roberts JJ.A.]
COUNSEL:
H. Puchala and M. Douglas-Cummings, for the appellant
D.R. Chohan and M.M. Butler, for the respondent, H.B
C.K., acting in person
Keywords: Family Law, Child Support, Civil Procedure, Foreign Orders, Enforcement, Jurisdiction, Statutory Interpretation, Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13, Ont. Reg. 53/03 – Reciprocating JurisdictionsFamily Law Act, R.S.O. 1990, c. F.3, Cheng v. Liu, 2017 ONCA 104, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65
FACTS:
H.B. and C.K. were married in Finland in 2003 and divorced in 2004. There are two children from their relationship. H.B. has resided in Ontario since 2007. C.K. has resided in Finland.
In 2010, a Finnish court awarded custody of the two children to C.K. and made a support order requiring H.B. to pay child support of 350 Euros per month per child (the “Finnish Order”). In 2011, the Finnish Court of Appeal dismissed H.B.’s appeal from this decision. For a brief period in 2009 and 2010, H.B. paid child support of 260 Euros per month per child. From 2010 until a temporary support order was made in Ontario in June 2019, he paid no child support.
Finland is a reciprocating jurisdiction for the reciprocal enforcement of support orders with Ontario, pursuant to the Interjurisdictional Support Orders Act (“ISO Act”) and Ont. Reg. 53/03 – Reciprocating Jurisdictions. Consequently, Finnish support orders can be registered for enforcement in Ontario pursuant to Part III of the ISO Act.
In 2014, the Interjurisdictional Support Orders Unit (“ISO Unit”) received a letter from the Minister of Justice in Finland requesting the registration of the Finnish Order and the 2011 appeal order in Ontario for enforcement against H.B. and claiming support arrears as of September 17, 2014. The ISO Unit sent the orders to the Ontario Court of Justice for registration for enforcement in Ontario under s. 18 of the ISO Act. The orders were registered on December 24, 2014, and a Notice of Registration of Order was served on H.B.
Pursuant to s. 20(2) of the ISO Act, H.B. brought a motion in the Ontario Court of Justice to set aside the registration for enforcement in Ontario of the 2010 and 2011 Finnish Orders. In support of his motion, H.B. deposed in his affidavit that he intended to move to Morocco soon and that he had not received notice of the Finnish proceedings that led to the 2010 Finnish Order. On March 9, 2015, the motion judge set aside the registration of the Finnish Order on the basis that H.B. did not have proper notice or a reasonable opportunity to be heard in relation to the foreign proceedings that led to the Finnish Order.
As it turns out, much of the material in the H.B. affidavit submitted on the motion was false. In 2018, the ISO Unit learned that H.B. in fact continued to live and work in Ontario. The ISO Unit commenced proceedings in the Ontario Court of Justice seeking support for the children in accordance with s. 21 of the ISO Act.
The motion judge rejected H.B.’s argument that the setting aside of the registration in Ontario invalidated the Finish Order. The motion judge further rejected H.B.’s argument that, in the absence of an existing Ontario court order, the matter should be returned to the Finnish courts where the original 2010 support order was made and was still operative. The motion judge made a temporary support order in June 2019. The motion judge made a final order in October 2019.
H.B. appealed the motion judge’s decision to the Superior Court of Justice. The appeal judge relied heavily on the Ontario Court of Appeal’s decision in Cheng v. Liu and allowed the appeal and quashed the motion judge’s decision for “want of jurisdiction”.
ISSUE:
(1) Does an Ontario court have jurisdiction under s. 21 of the ISO Act to order child support in the face of a valid but unenforceable (in Ontario) foreign child support Order?
HOLDING:
Appeal allowed.
REASONING:
(1) Yes.
In statutory interpretation, the language of a statutory provision must be interpreted in light of the purpose of the provision and the entire relevant context. A principle purpose of the ISO Act is to facilitate the enforcement of the support obligations of persons resident in one jurisdiction whose dependents (spousal or child) are resident in another jurisdiction. The core scheme of the ISO Act is to establish a fair and workable system for providing support for children and spouses who have a parent or former partner living in a different jurisdiction.
The Court found that the steps taken by the ISO Unit were appropriate and the initial decision by Justice Guay granting relief sought by the Unit was correct. Section 21 of the ISO Act specifically empowers an Ontario court to hear a new support application that takes into account the unenforceable foreign order as well as other information the court considers necessary and to make a new support order.
The Court further found that Cheng v. Liu did not support the respondent’s position or the appeal judge’s analysis. The issue in Cheng v. Liu was whether an Ontario court had jurisdiction to adjudicate a claim for corollary relief under the federal Divorce Act despite the fact that the parties’ divorce had been validly granted by a foreign court, without providing for corollary relief. The division or powers between the federal and provincial governments was at issue in that case.
Finally, the Court found that the appeal judge’s concern regarding the potential for double recovery was not a compelling point. First, the international support order regime is grounded in cooperation between knowledgeable governments and their agencies that administer the governing laws, treaties and intergovernmental agreements. Accordingly, the potential for double recovery is a red herring. Second, this case and the vast majority of similar cases point out that the real problem is no recovery, not double recovery.
Inniss v. Blackett, 2022 ONCA 166
[Strathy C.J.O., Roberts and Sossin JJ.A.]
COUNSEL:
E. J. Babin and B. Monahan, for the appellant
Y.D. Payne and J. R. D. Clarke, for the respondent
Keywords: Real Property, Partition and Sale, Unjust Enrichment, Constructive Trust, Resulting Trust, Partition Act, R.S.O. 1990, c. P.4., Housen v. Nikolaisen, 2002 SCC 33, Pecore v. Pecore, 2017 SCC 17, Karen Patterson et al. v. Nadeen Patterson and The Estate of Barbara Patrick, 2018 ONSC 6884, Davis v. Davis, [1954] O.R. 23 (C.A.), Brienza v. Brienza, 2014 ONSC 6942
FACTS:
The appeal arose over a dispute over the ownership of a property as between the respondent, P.I., and his grandmother, the appellant, C.B.. In 2002, following the purchase of the house at 470 Donlands Ave in Toronto (the “house”), both parties were listed on title as joint tenants. The parties lived in the house between 2002 and 2008, by which time the relationship between the parties had deteriorated and the respondent moved out.
On March 16, 2016, the respondent brought this action for partition and sale. The appellant defended and counterclaimed on the basis that the home was always hers alone. The trial judge accepted the respondent’s evidence over the appellant’s evidence with respect to the shared nature of contributions to the purchase, mortgage and maintenance of the house during the period the parties lived there together. The trial judge also found that the respondent’s attempt to sell his interest in the property was reasonable and rejected the appellant’s evidence that a sale of the property would result in hardship. The trial judge found that the appellant’s contribution was greater than that of the respondent and provided the appellant with an opportunity to buy out the respondent or else the property could be sold pursuant to s.2 of the Partition Act.
ISSUES:
(1) Did the trial judge fail to find that the respondent’s interest in the house was subject to a resulting trust (or, alternatively, a constructive trust) in favour of the appellant?
(2) Did the trial judge err by finding that the respondent contributed $51,200 towards the carrying costs of the house and that such contributions entitled him to a beneficial ownership interest in the house?
(3) Did the trial judge err by finding that the house should be sold pursuant to s. 2 of the Partition Act?
(4) Did the trial judge err in awarding costs to the respondent?
HOLDING:
Appeal dismissed.
REASONING:
(1) No.
The standard of review of the findings were entitled to deference, absent a palpable and overriding error. Taken together in the context of the house purchase, both the respondent’s contribution to the closing costs and assumption of risk in co-signing the mortgage made the house purchase possible. The trial judge preferred the evidence of the respondent to the evidence of the appellant. The trial judge’s factual findings included findings of credibility. There were no errors in these findings by the trial judge.
(2) No.
The trial judge conceded that there was a “dearth” of evidence to support these payments by the respondent, but concluded that it would not have been possible for the appellant to carry the house over this period without the respondent’s assistance. The trial judge’s finding was open to him on the record and was entitled to deference. There was no basis to interfere with the finding.
(3) No.
The trial judge did not err in ordering the sale of the house if the appellant was unable or unwilling to purchase the respondent’s interest. Joint tenants have a prima facie right to force a sale of a property under s. 2 of the Partition Act.
(4) No.
The trial judge found the respondent to be the successful party at trial and the Court of Appeal would not interfere with this determination. In the context of the four-day trial, the trial judge found a costs award against the appellant of $35,000 to be reasonable, proportionate and fair.
Hendriks v. Hendriks, 2022 ONCA 165
[Tulloch, Pardu and Roberts JJ.A.]
COUNSEL:
M. Ruhl and A. Timm, for the appellant
M. Stangarone and S. Kirby, for the respondent
Keywords: Family Law, Spousal Support, Child Support, Orders, Variation, Material Change in Circumstances, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 15.2(4), 17(7), Hickey v. Hickey, [1999] 2 S.C.R. 518, Rebenchuk v. Rebenchuk, 2007 MBCA 22, Bracklow v. Bracklow, [1999] 1 S.C.R. 420, L.M.P. v. L.S., 2011 SCC 64, Gray v. Gray, 2014 ONCA 659, Slongo v. Slongo, 2017 ONCA 272,  Wharry v. Wharry, 2016 ONCA 930
FACTS:
The parties were married for 18 years and separated in 2010. They had three children: T., G., and C. They entered into a consent final order on May 12, 2015 (“the Mossip Order”) that incorporated terms set out in minutes of settlement. The Mossip Order provided for child support and spousal support. In August 2018, the respondent began new employment in Qatar and his income increased from $78,000 to $214,000. The appellant brought a motion to vary child support and spousal support, enforce amounts she claimed remained outstanding, for an order for payment of future s. 7 expenses for both the middle and youngest child, and for the Table amount of child support commencing September 1, 2020 for the middle and youngest child. The motion was dismissed.
The motion judge found that the outstanding amounts the appellant claimed were satisfied. The respondent paid the appellant $18,435 from the sale of the matrimonial home, $2,520.60 share of a joint line of credit, and $22,825.60 from his RRSP. The appellant’s entitlement to spousal support was solely contractual in nature, as per the Mossip Order, and did not contain terms that permitted a variation of support. The appellant was not entitled to compensatory or needs-based support. The motion judge refused to vary the termination date of child support for the oldest child or the middle child, as child support was terminated on consent, and there was no evidence that either child remained a child of the marriage. The respondent overpaid $36,000 in child support because the Family Responsibility Office (“FRO”) could not confirm with the appellant whether an adjustment of child support was needed after July 1, 2016. The respondent paid child support for all three children until March 2018. The appellant continued to collect child support after the middle child moved out. The Mossip Order also provided for s. 7 expenses to be shared between the parties. Lastly, the motion judge declined to order Table amount child support for the middle or youngest child due to a lack of evidence regarding their financial circumstances and the appellant’s means and needs.
ISSUES:
(1) Did the motion judge err in finding that the respondent overpaid child support?
(2) Did the motion judge err by failing to consider whether child support arrears were owing for C. between August 2018 and February 2020?
(3) Did the motion judge err by failing to apply the Child Support Guidelines for G. and C.?
(4) Did the motion judge err by finding the respondent’s post-separation increase in income was not causally connected to the appellant’s contributions to the marriage?
(5) Did the motion judge err by finding that the appellant’s spousal support entitlement was contractual, and no further inquiry was required?
HOLDING:
Appeal allowed in part.
REASONING:
(1) Yes.
There was an overpayment, but the motion judge misperceived its quantum. Only a portion of the $36,855 was an overpayment. The parties confirmed with the FRO that support for the oldest child should have ended in July 2016 when he graduated high school. However, the respondent was still obligated to pay child support for his two other children, and pay spousal support.
From July 2016 to January 2018, the period of time when support was owing for the appellant and for two children, the respondent should have paid $1,396 per month. From February 2018 to May 2018, when support was owing for the appellant and only one, the respondent should have paid $896 per month. This amounts to $29,595 the appellant should have actually paid, leaving an overpayment of $7,260.
(2) Yes.
The motion judge did not address the issue of child support for the period between March 2018 and February 2020. The last payment made by the respondent was in March 2018. Between April 2018 and January 2020, the youngest child was still a minor residing at home with the appellant and attending high school. The parties agreed that the respondent recommenced making payments in the amount of $2,200 in February 2020. This left a period of 12 months during which the respondent did not pay spousal or child support for the youngest child. The arrears of child and spousal support owed for this period were $26,400.
(3) No.
The motion judge did not err in not ordering ongoing child support. The onus is on the party seeking support to demonstrate that the adult child requires educational support. The insufficient evidence provided by the appellant failed to discharge that onus. The motion judge concluded that there was inadequate evidence to order support beyond the sharing of the s. 7 expenses. The Mossip Order already accounted for the children’s post-secondary expenses to be shared by the parties. If the youngest child continues to reside with the appellant, and the appellant likely incurs costs for her shelter and food, she can apply for support in addition to the s. 7 expenses, upon presentation of adequate evidence.
(4) No.
The motion judge determined that the respondent’s increase in income was attributable to intervening causes, unrelated to the parties’ marriage or the roles they adopted during the marriage. There was no indication that the motion judge misapplied the law or misapprehended evidence, and there was no basis to interfere with the conclusion reached.
(5) Yes.
An appropriate amount of varied spousal support was an increase from $150 to $1,500, for 108 months. Given the appellant’s means and optimistic future, indefinite spousal support would not be appropriate. This variation reflected the economic disadvantages the appellant suffered as the primary caregiver for the family, and promoted the appellant’s self-sufficiency by providing her the financial security she needed to complete her education and make herself competitive in the job market.
It was an error for the motion judge to hold that the appellant’s spousal support could not be varied because the Mossip Order did not contain a term permitting variation. A judge retains jurisdiction to consider whether a variation in support should be granted based on whether there has been a material change in the circumstances of either former spouse, and having regard to any existing agreement.
While the respondent’s circumstances were sufficiently disconnected from the marriage to not qualify as a material change in his circumstances, his means may still be relevant to determine the extent he was now able to temper any continuing economic disadvantage resulting from the marriage still suffered by the appellant. The majority of household and childcare responsibilities fell to the appellant and had an impact on her ability to pursue her business and career. The respondent completed his MSW over three years, and he worked two jobs. After the separation, the children also resided primarily with the appellant, which continued her disadvantage.
Lamba v. Mitchell, 2022 ONCA 164
[Thorburn J.A. (Motions Judge)]
COUNSEL:
J. R. D. Clark, for the appellants
M. Unger Peters, for the respondents
Keywords: Civil Procedure, Appeals, Leave to Appeal, Extension of Time, Leave to Courts of Justice Act, RSO 1990, c C43, s. 6(1)(a), Rules of Civil Procedure, R. 3.02(1) and 61.03.1(3), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Reid v. College of Chiropractors of Ontario, 2016 ONCA 779, Krawczynski v. Ralph Culp and Associates Inc., 2019 ONCA 399, Sault Dock Co. v. Sault Ste. Marie (City) (1973)34 D.L.R. (3d) 327 (Ont. C.A.), Ravelston Corp. (Re) (2005), 24 C.B.R. (5th) 256, (Ont. C.A.)
FACTS:
The moving parties failed to close a real estate transaction after entering into an agreement of purchase and sale, and requested an extension of the closing. The responding parties denied the extension. Following the aborted closing the moving parties brought an action claiming specific performance, and the responding parties counterclaimed for damages and an order that the purchasers’ deposit be forfeited.
The responding parties re-sold the property and moved for summary judgment, which was granted. The moving parties unsuccessfully appealed to the Divisional Court. On this motion, the moving parties sought an order to extend the time to seek leave to appeal by an additional ten days.
ISSUE:
(1) Should the moving parties be granted an extension of time to seek leave to appeal the Divisional Court decision?
HOLDING:
Motion dismissed.
REASONING:
(1) No.
The Court noted the proposed appeal arose out of a decision of the Divisional Court exercising its appellate jurisdiction. Appellate decisions of the Divisional Court are intended to be final, accordingly, a further appeal to the Ontario Court of Appeal is exceptional.
Citing Enbridge Gas Distribution Inc. v. Froese, the Court set out that the overarching principle applicable to granting an extension is whether the “justice of the case” requires that an extension be given, taking into account: (1) whether the moving party formed an intention to appeal within the relevant period; (2) the length and explanation for the delay; (3) the prejudice to the responding party; and (4) the merits of the proposed appeal.
In assessing the merits of the proposed appeal, the Court noted the moving parties conceded that the Divisional Court did not make an error of law, and there was no apparent palpable and overriding factual error. Accordingly, there was no reasonable possibility of success on appeal.
A lack of merit alone is sufficient to dispose of a motion for an extension, however, the Court also indicated other relevant considerations outlined in Enbridge militated in favour of dismissing the motion. Specifically, the Court found that the moving parties did not form an intention to appeal within the relevant period, a period in which they were represented by counsel.
Further, the moving parties had failed to comply with two costs orders without explanation, which was a relevant consideration regarding the justice of the case.
Accordingly, the motion to extend the time to seek leave to appeal was denied.
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