Ontario Court of Appeal Refuses to Extend Time to File a "General" Notice of Appeal that Lacked a "Scintilla" of Merit to Appeal
In 1250264 Ontario Inc. v. Pet Valu Canada Inc. 2015 ONCA 5 the Ontario Court of Appeal refused to grant an extension of time for the Appellant to file its Notice of Appeal and to perfect the appeal. The Appellant claimed it was late filing the Notice of Appeal due to an administrative error. Justice Pardu observed that the delay was short, there was an explanation provided for the delay, and there was no prejudice to the Respondent. However, Justice Pardu was also
"unable to find any scintilla suggesting that the appeal has merit. The affidavit filed in support of the motion to extend time is silent on the issue of the merits. The notice of appeal is so general I am unable to construct any basis for an arguable appeal from the motion judge's factual findings. Very little would be required to show that there is some basis for an appeal in these circumstances, but I can find nothing." (para.7)
The Notice of Appeal stated the following grounds of appeal:
1. The court below made palpable and overriding errors of fact;
2. The court below made errors of mixed fact and law;
3. The court below made errors of law; and
4. Such further and other grounds as counsel may advise and this Honourable Court may permit. (para.5)
The Motion to extend the time to file the Notice of Appeal was dismissed with costs to the Respondent.
This case acts as a reminder to litigators to avoid the use of general or generic pleadings and that extensions of time to file Notices of Appeal will only be granted when the "justice of the case" requires that an extension be given. Also, it highlights the importance of diarizing appeal dates and double or triple checking your appeal material before filing it with the Court.
Erin C. Cowling is a freelance litigator, researcher & writer at Cowling Legal Freelance and President and Founder of FLEX LEGAL, a network of freelance lawyers.