Unexplained delay dooms motion to extend time to perfect appeal

The Court of Appeal for Ontario has the discretion to extend the time periods to perfect an appeal. The test is described in Sopinka and Gelowitz on the Conduct of an Appeal, 4th Edition, §§5.96-5.100. The central question is whether the “justice of the case” requires an extension. In general, this is informed by several factors, namely: (1) whether the appellant had a bona fide intention to appeal within the appeal period; (2) whether there is an adequate explanation for the delay beyond inadvertence; (3) whether there is an arguable ground for appeal; and (4) whether the respondent is prejudiced by the delay.

The Court of Appeal recently underscored the importance of the second factor: an adequate explanation for the delay. In Dupuis v. Waterloo (City), 2020 ONCA 96, the City’s appeal should have been perfected more than seven months before the Court heard the extension motion. The appellant had twice attempted to perfect the appeal (after the registrar served a notice of intention to dismiss for delay). However, these attempts were unsuccessful because of technical deficiencies in the appellant’s materials. The respondents argued prejudice from the delay (namely, delay in receiving payment of the damages and costs award), but did not challenge the appellant’s intention to appeal or, for purposes of the motion, the merits of the appeal. The “justice of the case” largely turned on whether the respondents were prejudiced by the delay and whether the appellant adequately explained its delay.

Justice Paciocco described the appellant’s explanation for the delay (or lack thereof) as follows: “[n]o explanation was offered by the appellant for the delays, other than that their efforts were deficient. No explanation was offered for why no steps were taken after the transcripts were ready, or why efforts to file were inadequate.” This doomed the appellant’s motion. Paciocco J.A. held:

I accept that, ideally, cases should be disposed of on their merits. However, the appellant is an experienced litigant, fully represented in this action. Despite this, to the prejudice of the respondents, inadequate efforts were made to ensure that this appeal was prosecuted with diligence and reasonable attention to the timelines and filing requirements imposed by this court. Those timelines and rules of the court exist to facilitate the orderly and proper disposition of appeals without unreasonable delay. In all the circumstances of this case, notwithstanding the preference for dealing with appeals on their merits, the justice of this case would not be served if I disregard the repeated failure by the appellant to comply with those rules and procedures. The motion is therefore dismissed.

Paciocco J.A. also granted costs of $5,000 to the respondents. Dupuis serves as a useful reminder that delay, if experienced, ought to be explained, and having materials bounced at the registry desk is not (itself) an adequate explanation. If the appellant faces difficulties satisfying the rules to perfect an appeal, those difficulties ought to be explained. Failure to do so may foreclose the delayed appeal, at least where the appellant is sophisticated and represented by counsel. This latter consideration suggests that the Court may have viewed the “justice of the case” differently if the appellant’s difficulties had resulted from an access to justice issue that was not present in Dupuis.

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Sopinka and Gelowitz on the Conduct of an Appeal, 4th Edition

Appellate litigators and judges have turned to Sopinka and Gelowitz on the Conduct of an Appeal for guidance since its first publication in 1993. Now in its fourth edition, this authoritative text remains the go-to resource for both novice and seasoned litigators seeking direction on best practices in preparing and presenting appeals. Originally written by former Supreme Court of Canada Justice John Sopinka and Osler partner and litigator Mark Gelowitz, this latest edition adds Osler’s David Rankin as co-author. This up-to-date version is the most current textbook available on appellate practice in Canada and is invaluable for lawyers looking to avoid costly errors while gaining a deep understanding of the procedural and jurisdictional aspects of launching and conducting appeals.

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