



COURT OF APPEAL FOR ONTARIO

CITATION: Leighton v. Best, 2014 ONCA 667

DATE: 20140926

DOCKET:
M43926

Weiler J.A. (In Chambers)

BETWEEN

Randy Leighton and Denise Leighton

Moving Parties

and

Matthew Best

Responding Party

Ashlee L. Barber, for the moving parties

Robert Kerr, for the responding party

Heard: September 19, 2014

Motion for an order to extend the time to appeal from the
    order of Justice James A.S. Wilcox of the Superior Court of Justice dated
    September 13, 2013.

Weiler J.A.:

Introduction

[1]

The issue on this motion is whether Leightons
[1]
time to serve and file a
    notice of appeal should be extended. The test on such a motion is well-settled:
Howard v. Martin,
2014 ONCA 309, 42 R.F.L. (7th) 47, at para. 26. It
    is whether the justice of the case requires that the extension be granted
    having regard to the circumstances of the particular case and all relevant
    considerations including: 1) whether the moving party formed a
bona fide
intention to appeal during the time permitted for an appeal; 2) the length of
    the delay and the explanation for the delay; 3) the merits of the proposed
    appeal; and 4) any prejudice to the responding party. (The order in which the
    third and fourth factors are considered is sometimes reversed.)

Facts

[2]

A brief summary of the facts as found by the trial judge will be of
    assistance. During a gentlemans hockey game, Randy Leighton highsticked
    Matthew Best, causing Bests face to bleed. When the referee stopped play, an
    altercation ensued. In retaliation for the high stick, Best removed Leightons
    hockey helmet and punched Leighton with such force that he broke Leightons jaw
    in three places and caused him to fall to his knees. The trial judge concluded
    that:

Best exceeded the scope of the implied consent [to physical
    contact] by removing Leightons helmet to land a punch of such force that there
    must have been an intention to injure or at least recklessness as to the
    consequences of such a hard blow.

[3]

Based on his findings, the trial judge held Best civilly liable
    to Leighton for damages for injuries sustained as a result of the punch:
Leighton
    v. Best
, 2009 CanLII 25972 (ON SC). Best did not appeal the decision.

[4]

Leighton commenced garnishment proceedings against Best and
    received funds between September 2010 and August 2011. In September 2011, Best
    made an assignment in bankruptcy, which resulted in a stay of the garnishment
    proceedings.

[5]

Leighton brought a motion for a declaration that his award of
    damages
would survive Bests discharge from bankruptcy
pursuant
    to s. 178(1)(
a.1
)(i) of the
Bankruptcy and Insolvency Act
,

R.S.C. 1985, c. B-3 (
BIA
)
, because it
was the result of
    bodily harm that was intentionally inflicted
.

[6]

The motion judge dismissed Bests motion on September 13,
    2013. It is this decision that Leighton seeks an extension of time to appeal.
    The reason is that in the intervening period, the legal landscape has changed.
    In dismissing Bests motion, the motion judge relied on
Dickerson v.
    1610396

Ontario Inc.
,
2013 ONSC 403, 98 C.B.R. (5th) 40. In that case,

the
    motion judge held that although the defendant had intended to apply force to
    the plaintiff by punching him, that did not mean he intended to injure the plaintiff
    as required under s. 178(1)(a.1) of the
BIA.
On October 31, 2013,
    the Court of Appeal reversed the decision at first instance in
Dickerson
and
    held that where there is direct proof of intentional infliction of harm or
    where such intent can be reasonably inferred on the facts, s. 178(1)(a.1)(i)
    will apply. See
Dickerson v. 1610396 Ontario Inc.
, 2013 ONCA 653, 369
    D.L.R. (4th) 738. The court added, at para. 40, that [i]n all the reported
    cases of assault, the section was found to apply.

[7]

Leightons affidavit filed in support of this motion is to the effect
    that on October 31, 2013, his counsel, Rachel Leck, brought the Court of
    Appeals decision to his attention and he instructed her to appeal. On the same
    day, she wrote to the motion judge, copying Bests counsel, and asked him to
    reconsider his decision as the order dismissing the motion had not yet been
    issued and entered. The motion judge refused to do so on November 19, 2013.
    That same day, Leightons counsel asked Bests counsel to consent to the late filing
    of the notice of appeal. On December 23, 2013, Best refused.

[8]

This notice of motion requesting an extension of time was not brought
    until June 16, 2014. On August 12, 2014, the motion was adjourned to permit
    Leighton to file further and better material in support of the motion and
    counsel for Best was given the opportunity to cross-examine if he so desired.
    No cross-examinations have occurred.

Application of the Test

[9]

Leighton concedes he did not intend to appeal within the prescribed time
    period. However, when Leighton heard of the Court of Appeals decision in
Dickerson
from his lawyer about two weeks after the appeal period had expired, he
    acted promptly and instructed his lawyer to appeal. In
Rizzi v. Mavros
,

2007 ONCA 350, 85 O.R. (3d) 401,

a delay of 15 months in forming an intention to appeal was accepted on the
    basis that prior to the release of the Supreme Court of Canadas decision in
Resurfice
    Corp. v. Hanke
,

2007 SCC 7,

[2007] 1 S.C.R. 333
, conflicting
    appellate authority on causation made success on appeal very uncertain. In this
    case, success on appeal appeared to be unlikely until the
Dickerson
decision was reversed. The delay respecting intention to appeal is short.

[10]

Insofar
    as the length of the delay in seeking an extension of time to appeal and an
    explanation for the delay are concerned, Leighton simply says that he left the
    matter in the hands of his lawyer to take whatever steps [were] necessary.

[11]

Leightons
    lawyer has sworn an affidavit that addresses her delay in waiting until June
    2014 to bring this motion. She advises that in the summer of 2013, her husband
    suffered from a serious health problem that required a brief period of
    hospitalization and regular and ongoing treatment. She states that managing
    all the household responsibilities, raising her children and concern for her
    husbands health took an emotional and physical toll on her. Yet she did not
    take a leave of absence from work. She states, however, I was in the office
    less frequently between the fall of 2013 to the present and was distracted by
    my situation at home which caused me to be less vigilant following up with
    matters in the workplace.

[12]

Bests
    counsel submits that Leightons counsel is not a sole practitioner and could
    have assigned the file to someone else in her office because it was time
    sensitive.

[13]

The
    steps Leightons counsel took until December 23, 2013, are a satisfactory
    explanation for the delay until that date. I am not satisfied with the
    explanation for the delay for the first six months of this year. Leck was
    actively engaged on the file for some six months after her husbands illness
    and, if the cumulative effect of her responsibilities was overwhelming, I agree
    that she ought to have transferred the file within the office.

[14]

The
    failure of Leightons counsel to provide a satisfactory explanation for the
    delay is not necessarily fatal in itself, however, because in deciding whether
    the overall justice of the case requires that leave be granted, consideration
    must be given to all of the factors. In
Howard,
Gillese J.A. commented,
    at para. 36, The merits of a proposed appeal can be decisive on a motion to
    extend the time for filing. Even if the other factors militate against
    extending time, the merits may be so significant as to justify extending time.

[15]

In
    this case, the motion judge stated, at para. 20 of his reasons, I find the
Dickerson
case and the present case to be similar in important aspects. In both,
    the punches were intentional. The merits of appeal are strong.

[16]

Best
    submits that he suffers prejudice by being deprived of a timely discharge from
    bankruptcy. He states, The fundamental policy of the bankruptcy regime is to
    relieve a debtor of an insupportable burden of debt and allow [him] to return
    to a productive economic life. Bests prescribed period of bankruptcy was 21
    months. It has now reached 36 months and will continue if the motion is
    allowed. The incident giving rise to the civil judgment took place more than 10
    years ago and Best submits he should be permitted to move forward with his
    life.

[17]

Leighton
    submits that Best is not prejudiced by the delay because he has known since
    shortly after the Court of Appeals decision reversing
Dickerson
that
    Leighton was seeking to have the motion judges decision reconsidered or
    appealed. The parties had their day in court. Enforcement of Leightons judgment,
    which he submits is in accordance with the policy in s. 178(1)(1.a)(i) of the
BIA
,
    should not be thwarted because the legal landscape changed only after the
    appeal period had expired and the total delay here is about the same as in
Resurfice.

[18]

I
    agree that the prejudice to Best from being unable to obtain an earlier
    complete discharge should not prevent an extension from being granted. Overall,
    I am of the opinion that it is in the interest of justice to extend the time to
    file a notice of appeal. The motion is allowed. Leighton shall have five days
    from the release of these reasons to file a notice of appeal.

[19]

Although
    Leighton has been successful on this motion, he has received an indulgence from
    the court. Consequently, Leighton is ordered to pay costs to Best fixed in the
    amount of $1500 inclusive of all disbursements and applicable taxes.

Released: September 26, 2014

KMW                                                                            K.M.
    Weiler J.A.





[1]
Although the applicants are Randy Leighton and his wife, Denise Leighton, I
    will refer to them collectively and individually as Leighton.


