



COURT OF APPEAL FOR ONTARIO

CITATION:
1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA
    5

DATE: 20150107

DOCKET: M44521 & M44540

Pardu J.A. (In Chambers)

BETWEEN

1250264 Ontario Inc.

Plaintiff (Moving Party/

Responding Party by way of cross-motion)

and

Pet Valu Canada Inc.

Defendant (Responding Party/

Moving Party by way of cross-motion)

Jean-Marc Leclerc, for the moving party/responding party
    by way of cross-motion

Derek Ronde and Stefanie Holland, for the responding
    party/moving party by way of cross-motion

Heard: December 23, 2014

On motion for an extension of time to file a notice of
    appeal and for an extension of time to perfect the appeal.

ENDORSEMENT

[1]

1250264 Ontario Inc. (125) seeks an order extending the time to file
    its notice of appeal and to extend the time to perfect the appeal. According to
    its notice of motion, it failed to file its notice of appeal on time because of
    an administrative error, although it was served in time. It wants the time to
    perfect this appeal extended so that appeals from related orders in this action
    can be dealt with at the same time as this appeal.

[2]

Pet Valu Canada Inc. brought a motion to strike the notice of appeal on
    the basis that the generic grounds of appeal give no hint of any alleged errors
    committed by the motion judge. If this appeal is permitted to proceed, Pet Valu
    seeks an order for security for costs on the ground that the appeal is
    frivolous and vexatious, and on the ground that 125 has insufficient assets to
    satisfy any judgment for costs.

[3]

This appeal arises from the summary dismissal of two common issues
    raised in this class proceeding. Pet Valu successfully moved to dismiss the
    following claims defined as common issues:

·

Has the defendant breached its contractual duty to the Class
    Members at any time during the Class Period by failing to share Volume Rebates
    with them?

·

If the conduct described in common issues 1 and 2 above did not
    constitute a breach of the Franchise Agreement, has the defendant been unjustly
    enriched by such conduct, if so found?

[4]

The motion judge found that Pet Valu was contractually obliged to share
    Volume Rebates with franchisees in a reasonable manner, but found as a fact
    that all of the Volume Rebates were passed on and shared with franchisees,
    subject to reasonable mark-ups by Pet Valu, the franchisor. The second common
    issue failed as a result of the factual findings on the first.

[5]

The motion judges decision was released on October 31, 2014. According
    to 125s 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:

(a)

whether the moving party formed a
bona fide
intention to appeal
    within the relevant time period;

(b)

the length of, and explanation for, the delay in filing;

(c)

any prejudice to the responding parties, caused, perpetuated or exacerbated
    by the delay; and

(d)

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 judges 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.

[8]

The motion judge accepted the appellants 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. As a result of this conclusion, there is no need to address the
    cross-motion, or the motion to extend the time to perfect the appeal. The
    appellant proposes to appeal from other decisions made more recently by the
    motion judge, and these reasons do not foreclose those steps.

[10]

Accordingly,
    the motion to extend the time to file the notice of appeal and to extend the
    time to perfect the appeal is dismissed with costs to the respondent fixed at
    $2000, including disbursements and HST.

[11]

Pet
    Valus motion is dismissed as it is now moot.

G. Pardu J.A.


