Friday, November 15, 2013

Brief delays in launching appeal not necessarily fatal even where merits thin

Denomme v. McArthur, 2013 ONCA 694 is a useful case showing, as does the recent Fitzpatrick decision, that brief delays in launching an appeal will generally not block a delay even where the merits of the appeal seem thin:

[7]          The factors that a court considers in deciding whether to grant an extension of time to appeal are: 1) whether the appellant formed an intention to appeal within the relevant period; 2) the length of the delay and the explanation for it; 3) any prejudice to the respondent; 4) the merits of the appeal, and 5) whether the justice of the case requires that time be extended: Rizzi v. Mavros (2007), 85 O.R. (3d) 401 (C.A.), at para. 16. In a case involving children, the justice of the case is reflected in the best interests of the children: Lombardi v. Mehnert, [2009] O.J. No. 1715, 67 R.F.L. (6th) 167 (Ont. S.C.).
[8]          The husband did intend to appeal within the time limit. The delay was initially only one day, and the explanation was a counting error by the husband’s lawyer. A one-day delay would not have caused any prejudice to the wife or to her father in his action. I also note that rules of professional conduct and civility generally require that counsel agree to reasonable requests from opposing counsel, including for extensions of time, so long as doing so would not prejudice the legitimate interests of the client: see Law Society of Upper Canada, Rules of Professional Conduct, rule 6.03(2) and related commentary; The Advocates’ Society, Principles of Civility for Advocates, principle 13.
[9]          The respondents on this motion submit that there is no merit to the appeals. The appeals appear to challenge the trial judge’s appreciation of the evidence and his factual conclusions.
[10]       As this court is required to accord a high degree of deference to a trial judge’s findings of fact, it is difficult to see the merit in the appeals. However, a party is entitled to appeal and should not be deprived of that entitlement where there is no real prejudice to the other side. That is the case with respect to the financial issues in the matrimonial action and the debt action.

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