



COURT OF APPEAL FOR ONTARIO

CITATION: Jonas v. Elliott, 2020 ONCA 542

DATE: 20200826

DOCKET: M51705 (C68049)

Pepall J.A. (Motion Judge)

BETWEEN

Richard Edmond Jonas and Anne
    Catherine Jonas

Appellants (Moving Parties)

and

Matthew Elliott and
The
    Kiwanis Community Centre
and the
City of Stratford and Carrie Goudy

Respondents (Responding Parties)

James May, for the moving parties

Robert Smith, for the responding
    parties City of Stratford and Carrie Goudy

Heard and released orally by videoconference:
    August 21, 2020

REASONS FOR DECISION


[1]

The moving parties move for an extension of time to September 4, 2020 to
    perfect their appeal.

[2]

On January 17, 2020, the moving parties action against the respondents
    was dismissed as a result of a summary judgment motion.

[3]

The moving parties served their notice of appeal on February 14 and
    filed it shortly afterwards.

[4]

In March 2020, due to the COVID-19 emergency, limitation and procedural
    time limits were suspended and the moving parties did not perfect their appeal.
    On July 16, 2020, the moving parties received a Notice of Intention to Dismiss Appeal
    for Delay from the Registrar of the Court of Appeal.  The Notice provided that
    the appeal was to be perfected by August 4.

[5]

Due to communication issues arising between co-counsel for the moving
    parties due to challenges associated with COVID-19, limited cellular capacity
    and Wi-Fi, on July 28, counsel sought a short extension from counsel for the
    respondents.  This was refused on August 4 at which point it was too late to
    file the moving parties materials. (Counsel for the respondents was unaware of
    the August 4 deadline in the Registrars Notice.)

[6]

The moving parties wish to challenge the judgment on two bases: the
    motion judges failure to consider the action as a whole in granting what they
    describe as partial summary judgment and in his treatment of foreseeability.

[7]

The moving parties are granted an extension of time to September 4, 2020
    to perfect their appeal.  They clearly formed an intention to appeal within the
    relevant time period; they provided a reasonable explanation for the delay; and
    its length was justified.  There is no prejudice to the respondents other than
    an absence of finality, and the merits of the appeal are arguable.  It is not a
    case where the appeal has so little merit that the court should deny the
    important right to appeal.  See:
Issasi v. Rosenzweig
,
    2011 ONCA 112, at para. 10 and
Duca Community Credit Union
    Limited v. Giovannoli
(2001), 142 O.A.C. 146 (C.A.), at para. 14.

[8]

Under the circumstances and given the challenges presented by the
    COVID-19 pandemic, the justice of this case calls for the granting of the
    requested time extension. See
Mortazavi v. University of Toronto
, 2013
    ONCA 66, at para. 21.

[9]

There was no reasonable basis for the respondents to have opposed this
    motion.  In these circumstances, the respondents shall pay costs to the moving
    parties in the amount of $1000 inclusive of disbursements and applicable tax.

S.E. Pepall J.A.


