By Nasra Esak
In a recent decision of the Ontario Court of Appeal, Javid Estate v. Watson, 2023 ONCA 665, the Court of Appeal outlined the relevant factors Courts must consider when deciding on a motion for an extension of time to appeal. This decision serves as a reminder to litigators of the Court’s expectations regarding timely, transparent, and genuine pursuit of legal remedies.
This appeal was in relation to a previous judgment involving a dispute between a trustee and beneficiary and the valid declaration of a trust. The moving party, Mr. Watson, sought for an extension of time to appeal this judgment as well as add a party to the appeal. The responding party opposed the extension and contended that the motion to add the non-party was premature. The responding party also sought security for costs if the extension of time was granted.
In its decision, the Court of Appel outlined the conduct of the parties and events which transpired following the original judgment:
- In December 30, 2022, Mr. Watson communicated to opposing counsel his intention to prepare a notice of appeal as well as a motion for a stay.
- On January 27, 2023, after the expiry of the appeal period, Mr. Watson sent another email to opposing counsel apologizing for the delay, stating that he expected to provide a motion record the following week, requested for consent regarding adding the non-party and advised his intention to review the draft order and “advise soonest”.
- Mr. Watson failed to take any of the above noted steps. He never approved the draft judgment or necessitating an appointment to settle its terms before the application judge.
- On May 24, 2023, the responding party, in a contested motion, obtained an order finding the moving parties in contempt of the judgment.
- It was not until June 9, 2023 when the moving party sought this motion for an extension of time to appeal
Court of Appeal’s Analysis
In its decision, the Court of Appeal affirmed that when pursuing a motion to extend time, pursuant to Rule 3.02 of the Rules of Civil Procedure, the onus is on the moving party to establish the grounds for an extension. The Court noted the following factors as relevant when considering these grounds:
- whether the moving party had an intention to appeal within the relevant period;
- the length of, and explanation for, the delay in appealing;
- prejudice to the responding party; and
- the merits of the proposed appeal.
The Court confirmed that the overarching principle to be considered is whether the justice of the case requires the extension of time.
When considering these factors, the Court of Appeal held that Mr. Watson failed in providing evidence to support their claim of a continuing intention to appeal within the required timeframe. Despite his earlier correspondences, the court found that Mr. Watson made no significant progress in the file until several months after the deadline had passed. The reasons given for the delay, such as consulting with the non-party and obtaining legal advice, were unsupported by evidence and contradicted by Mr. Watson’s previous communications. The Court found nothing in Mr. Watson’s materials that suggested a continuing intention to appeal the judgment.
Furthermore, although the Court of Appeal noted that a motion for an extension of time is not an occasion to do a “deep dive” into the merits of the case, compelling merits may tip the balance in favour of an extension of time. However, the Court noted that such circumstances did not exist here. In this matter, the Court of Appeal noted that Mr. Watson spent the majority of his submissions to reargue the original case, rather than address the courts alleged errors in law or fact.
The Court found that Mr. Watson’s conduct exhibited a pattern of delay, obstruction, and lack of good faith. This was deemed by the Court as prejudicial to the responding party as it caused frustration, delays, and extra costs.
Consequently, the Court of Appeal found that an extension of time would be prejudicial to the responding party and is contrary to the interests of justice. As such, the Court dismissed the appeal and ordered costs payable to the respondents.
This decision is a significant caution to litigators and should serve as a reminder of the court’s scrutiny of a parties’ conduct, unjustifiable delays, and genuine intentions when considering motions to extend time. Parties should always strive to make efforts to promptly address legal issues, maintain open communications with opposing counsel, and approach legal proceedings with integrity and justice.
 2023 ONCA 511
 Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131,