June 20, 2022

By Brian Babcock

It is fitting that the Court of Appeal would release a decision about extending the time to file an appeal a few days before daylight savings time extends daylight into the evenings.

Like most things in court, there is a time limit within which to file your notice of appeal whether to Divisional Court or the Court of Appeal itself. The principles are the same for either court.

The basic test has four elements:

  • Whether the appellant formed an intention to appeal within the time limit;
  • The length of, and explanation for, the delay;
  • Any prejudice to the respondent; and
  • The merits of the appeal

The factors work together, so weakness in one area might be countered by strength in another.

In considering the factors overall, the court will consider the cost of litigation and the delay caused by an appeal balanced against the justice of the case.

In Sabatino v. Posta Ital Bar Inc. the Court of Appeal judge hearing the motion reviewed each of these tests in context.

Intention to appeal is a relatively low threshold, but one which works with the length of the delay. The longer the delay, the harder it will be to show the intention, because it must be a continuing intention. On the facts of the case, the notice of appeal had been prepared in time; it was only filed late.

The appellant in this case explained that the delay was contributed to by their decision to change lawyers, as well as ongoing settlement discussions. The delay was not lengthy, so this explanation was adequate. As with the intention, a longer delay would have required a better explanation.

The focus is on prejudice caused by the delay, not prejudice related to the appeal itself. Where there is a short delay, it is difficult for the respondent to show prejudice.

The merits of the appeal is also a fairly low threshold at this stage. Frequently respondents want to argue that they will win the appeal, so it should not be allowed to proceed. However, where appeal has some possibility of success, even if the individual judge hearing the motion to extend time has difficulty seeing how it will succeed, this element is satisfied. Only when the lack of merit is clear cut, combined with other factors, will leave not be granted.

The best way to win a motion to extend time to appeal is to not have to bring the motion. It is far simpler to simply file the notice of appeal on time.

Practically every step in a court action has time limits. Some lawyers carefully follow the time limits, while others habitually miss them. Which sort of lawyer would you rather have: the careful one, or the sloppy one?

The litigation team at Weilers Law prides itself on familiarity with the rules, including time limits. Where an extension is required, we know the test, will prepare the materials accordingly, and are strong advocates in court. We also know how to oppose extensions.  We understand that our clients’ peace of mind is important to them, so they should not have to worry about these details. We do the worrying for you.

Whether it is an action in Superior Court in Thunder Bay, Kenora, or Fort Frances or an appeal to the Divisional Court or the Court of Appeal, Weilers Law has the knowledge, experience, and sound judgment to make sure that your case is presented in the best possible manner. Whether you are suing or being sued, if the case is serious and you want serious lawyers, we may be the lawyers for you.