Motion to extend time to serve and file appeal

Nguyen v. Economical Mutual Insurance Company, 2015 ONCA 828:

[12]       With that factual background in mind, I turn to the test for an extension of time for the service and filing of a notice of appeal. Pursuant to r. 3.02(1), the court may order an extension or abridgment of time on such terms as are just. The following five factors are relevant:

(1) whether the appellant formed an intention to appeal within the relevant period;

(2) the length of, and explanation for delay;

(3) the prejudice to respondent;

(4) the merits of the appeal; and

(5) whether the "justice of the case" requires it.

See Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 15, and Howard v. Martin, 2014 ONCA 309, at para. 26.

[13]       When considering the merits of the appeal, it is not with a view to determining whether the appeal will succeed, but only with a view to determining whether the appeal has so little merit that the court could reasonably deny the important right of appeal: Issai v. Rosenzweig, 2011 ONCA 112, at para. 10, and Duca Community Credit Union Ltd. v. Giovannoli (2001), 142 O.A.C. 146 (C.A.), at para. 14. The merits of a proposed appeal can be decisive on a motion to extend the time for filing. Even if the other factors militate against extending time, the merits may be so significant as to justify extending time: Howard, at para. 36.  Similarly, even if other factors militate in favour of granting an extension, where the appeal is clearly without merit the motion will be denied: 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, at para.7.