Monday, March 4, 2013

The Test for Extending Time

Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 deals with the test to extend time generally.  In the specific case the Court was considering extending time to file a motion to seek leave to appeal:
[15]       The test on a motion to extend time is well-settled.  The overarching principle is whether the “justice of the case” requires that an extension be given.  Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:
(a)         whether the moving party formed a bona fide intention to appeal within the relevant time period;
(b)         the length of, and explanation for, the delay in filing;
(c)         any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and
(d)         the merits of the proposed appeal.
See Rizzi v. Mavros (2007), 85 O.R. (3d) 401 (C.A.).
[16]       In my view, lack of merit alone can be a sufficient basis on which to deny an extension of time, particularly in cases such as this where the moving party seeks an extension to file a notice of leave to appeal, rather than an extension of time to file a notice of appeal: see Miller Manufacturing and Development Co. v. Alden, [1979] O.J. No. 3109 (C.A.), at para. 6.


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