Skip to main content

Five Factors to Set Aside Dismissal of Appeal for Delay

In Davies v. The Corporation of the Municipality of Clarington et al, 2019 ONSC 6895, Justice Woodley went over the test to set aside a registrar’s order dismissing an appeal for delay.

The test is:

  • whether the appellant had an intention to appeal within the time for bringing an appeal
  • the length of the delay
  • any explanation for the delay
  • any prejudice to the respondent caused by the delay
  • the justice of the case based on a consideration of the merits of the appeal

Justice Woodley indicated that the last factor (the merits of the appeal) is the most important. A plaintiff does not need to prove that he or she will succeed on the appeal. However, the plaintiff must show that he or she has a “decent, arguable case” so that the interests of justice support the right to proceed with the appeal, despite being late in perfecting the appeal.

Another issue is that, in order to perfect an appeal, a formal order or judgment is required. The fact that a costs issue may be outstanding is not a reason to delay seeking a formal order or judgment.

Justice Woodley stated that it is improper to draft a single order incorporating both a merits decision and a costs decision.  Two formal orders need to be taken out.

Alon Barda was trial counsel for one of the defendants in this matter and is also counsel on the appeal. The appeal arises out of a six month trial in which the plaintiff was awarded only $50,000 in damages and was ordered to pay over $2.3 million in costs. The defendants had offered to settle for $500,000 plus costs.