Canada: 1250264 Ontario Inc. v. Pet Valu Canada Inc.: Absence Of "Any Scintilla" Of Merit Means Late Notice Of Appeal Cannot Be Filed

In her January 7, 2015 decision in 1250264 Ontario Inc. v. Pet Valu Canada Inc., Justice Pardu of the Ontario Court of Appeal refused to grant leave to file a late notice of appeal notwithstanding the facts that:

  • it had been served on time; and
  • it was only filed marginally late due to an administrative error.

Justice Pardu reached this result because she could not find "any scintilla" of merit to the appeal. Her decision thus demonstrates the importance of pointing to some merit on motions to extend the time in which to file a notice of appeal. It is also is a cautionary tale about preparing notices of appeal, as the extremely general nature of the appellant's notice of appeal in this case left Justice Pardu without any basis for assessing the potential merit in the appeal. She wrote:

[5] The motion judge's decision was released on October 31, 2014. According to 125's notice of motion, as a result of an administrative error, no effort to file the notice of appeal was made until December 10, 2014. It was not accepted for filing because it was defective. The notice of appeal states the following grounds of appeal:

  1. The court below made palpable and overriding errors of fact;
  2. The court below made errors of mixed fact and law;
  3. The court below made errors of law; and
  4. Such further and other grounds as counsel may advise and this Honourable Court may permit.

[6] As Gillese J.A. observed in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15:

The test on a motion to extend time is well-settled. The overarching principle is whether the "justice of the case" requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:

  1. whether the moving party formed a bona fide intention to appeal within the relevant time period;
  2. the length of, and explanation for, the delay in filing;
  3. any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and
  4. the merits of the proposed appeal.

[7] Here, the delay is short, an explanation has been provided for the delay, and there is no prejudice to Pet Valu. However, I am unable to find any scintilla suggesting that the appeal has merit. The affidavit filed in support of the motion to extend time is silent on the issue of the merits. The notice of appeal is so general that I am unable to construct any basis for an arguable appeal from the motion judge's factual findings. Very little would be required to show that there is some basis for an appeal in these circumstances, but I can find nothing. [Emphasis added.]

[8] The motion judge accepted the appellant's argument that the contract required the respondent to share volume rebates with its franchisees, but made the purely factual finding that the respondent had in fact shared all of the volume rebates with the franchisees, subject only to a reasonable markup. This factual conclusion will be entitled to a high degree of deference. There is no hint of anything in the material before me which undermines that finding. I conclude therefore that the appeal does not have merit. Under these circumstances, the justice of the case does not require granting an extension.

[9] For these reasons, the motion to extend time to file the notice of appeal is dismissed. ...

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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