In Schwilgin v. Szivy, the Ontario Court of
Appeal dismissed a self-represented litigant's request for an
extension of time to file a notice of appeal, after the litigant
incorrectly had appealed an order to the Divisional Court. The case
is interesting for the Court's recognition that costs may not
adequately compensate prejudice caused by granting an extension of
time when the moving party refuses to pay them.
Mr. Schwilgin brought a largely unsuccessful motion to vary
child support obligations between him and the respondent, Ms.
Szivy. He incorrectly appealed the order to the Divisional Court,
which dismissed the appeal for having been brought in the wrong
forum. The Divisional Court also declined to exercise its
jurisdiction to transfer the appeal to the Court of Appeal.
Despite the Divisional Court's clear instructions that Mr.
Schwilgin had brought his appeal in the wrong forum, Mr. Schwilgin
sought an extension to seek leave to appeal the Divisional
Court's order to the Court of Appeal. The Court of Appeal
subsequently denied his request on the basis that the proposed
leave application was "devoid of merit".
Mr. Schwilgin then brought a motion in the Court of Appeal for
an extension of time to file a notice of appeal from the original
child support order.
Analysis and Disposition
Justice Brown dismissed Mr. Schwilgin's motion, relying on
the factors set out in Kefeli v. Centennial College of Applied
Arts and Technology (2002), 23 C.P.C. (5th) 25 (Ont.
In particular, while Justice Brown accepted that Mr. Schwilgin
formed an intention to appeal the child support order within the
relevant time, he found the following factors weighed against
granting an extension of time:
First, Mr. Schwilgin's explanation for his delay was not
reasonable. According to Mr. Schwilgin, the delay arose because of
his mistake, as a lay person, in appealing the order to the
Divisional Court. However, Justice Brown found that Mr. Schwilgin
was not only a person of some sophistication, but that opposing
counsel had notified him that he was appealing to the wrong court:
A fact referenced by the Divisional Court in dismissing his appeal.
Coupled with Mr. Schwilgin's meritless attempt to appeal the
Divisional Court's order, Justice Brown found the absence of a
reasonable explanation for delay weighed very heavily against
granting the motion.
Second, there were little if any merits to Mr. Schwilgin's
Finally, Justice Brown found that granting the motion would
cause further prejudice to the respondent which could not be
compensated with costs. In quashing his appeal, the Divisional
Court ordered Mr. Schwilgin to pay the respondent $10,000 of costs.
Mr. Schwilgin had not done so and admitted in open court that he
would not do so, citing a lack of resources. According to the
respondent, Mr. Schwilgin had a number of other cost awards against
him relating to their matrimonial litigation which also remained
Against this background, Justice Brown noted that:
 ... Courts usually talk in terms
of prejudice which cannot be compensated for by costs. But, at some
point, costs themselves become an inadequate form of compensation
for prejudice, especially where the party on whom they are imposed
refuses to pay them.
On the facts before him, Justice Brown found that costs could
not adequately compensate the respondent for any prejudice she
would suffer as a result of granting the extension, since Mr.
Schwilgin would not pay them.
As a result, the justice of the case favoured dismissing Mr.
Schwilgin's motion, which Justice Brown did with costs.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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