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The Court of Appeal for Ontario dismissed a motion to set aside the refusal to extend time to appeal, finding no error in the motion judge’s discretionary decision.
The Court of Appeal for Ontario dismissed a motion to extend time to appeal, finding the delay and the appellant’s litigation conduct made relief contrary to the interests of justice.
The panel found that email exchanges with the Registrar demonstrated the applicant's good faith intention to appeal before the deadline, that the absence of those emails before the chambers judge was material, and that justice required granting the extension; the signed document attached to the applicant's affidavit is to be treated as her Notice of Appeal and the chambers dismissal is overturned.
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The Ontario Court of Appeal denied an extension of time to appeal, finding no arguable error in the trial judge’s findings on credibility, silence, or personal liability.
The Court of Appeal held the notice of appeal was not properly served within the Rules, so the appeal had not been brought and the chambers order was vacated.
Extension of time refused because the Applicant was 65 days late, provided no reasonable explanation for the delay, failed to identify any error by the General Division, and is statute-barred such that even if time were extended there is no reasonable chance of success; therefore the application will not proceed.
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The notice of appeal was filed more than one year after the Commission's reconsideration decision, placing it outside the maximum extension permitted by section 52(2) of the DESD Act; accordingly the General Division must refuse the extension and the appeal cannot be heard.
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The Court exercised its discretion under rule 14 and refused to extend time because the applicant failed to show a reasonable excuse for missing the appeal period (he provided an active email contact which he did not monitor and gave no reliable excuse for delayed receipt of mailed correspondence), the application for extension was not timely, and the proposed appeal did not demonstrate potential merit (no arguable palpable and overriding error in the trial judge's findings imputing income or rejecting undue hardship); on balance the factors militate against granting an extension.
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The application was dismissed because it was filed after the mandatory one-year deadline prescribed by s.167(5) of the Income Tax Act (application deadline May 31, 2023); the Court has no discretion to grant an extension outside that statutory limit regardless of the applicant's sympathetic circumstances, so the application filed July 10, 2023 was out of time and must be dismissed.
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Although the applicant had a bona fide intention to appeal and a reasonable excuse based on a lay misunderstanding about exhibit retention, the proposed Notice of Appeal contained no arguable grounds capable of overcoming the narrow, deferential standard of review applicable to parenting decisions; therefore the interests of justice did not require granting an extension of time, and the motion was dismissed.
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