



COURT OF APPEAL FOR ONTARIO

CITATION: Raitman v. Medallion Development Corporation, 2015
    ONCA 126

DATE: 20150224

DOCKET: M44044/M44545

Cronk, Pepall and Benotto JJ.A.

BETWEEN

Ella Raitman
and
    Samuel Raitman

Plaintiffs

(Moving Party)

and

Medallion Development Corporation

Defendant

(Respondent)

Ella Raitman, acting in person

Matthew P. Maurer, for the respondent

Heard: February 19, 2015

On appeal from the order of Justice R.G. Juriansz of the Court
    of Appeal for Ontario, dated December 15, 2014.

ENDORSEMENT

[1]

The moving party, Ella Raitman, seeks an order setting aside the
    December 15, 2014 order of Juriansz J.A. in which he denied the moving partys request
    to extend the time to set aside the September 11, 2014 order of Feldman J.A.

[2]

Feldman J.A. had dismissed the moving partys motion to extend the time
    to file a notice of appeal from a November 29, 2013 judgment of Boswell J., in
    which he dismissed her and Samuel Raitmans action against the respondent,
    Medallion Development Corporation (MDC). The Raitmans claimed damages for
    breach of contract arising from an alleged ceiling height deficiency in their
    home.

[3]

As noted by Gillese J.A. in
Enbridge Gas Distribution Inc. v. Froese
,
    2013 ONCA 131, at para. 15, the test on a motion to extend time is well
    settled. The over-arching principle is whether the justice of the case requires
    that an extension be given. Factors to be considered include:

-

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

-

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

-

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

-

the merits of the proposed appeal.

[4]

As stated in the trial judgment (
Raitman v. Medallion Development
    Corporation
, 2013 ONSC 7351), the history of the parties dispute is as
    follows. The Raitmans sued MDC for damages for breach of contract. MDC pleaded
    that it was improperly named, and that Medallion Developments (South Maple) Ltd.
    (Medallion) was the contracting party. At the outset of the trial, the trial
    judge asked the Raitmans whether they wished to amend their claim to add
    Medallion as a party. Medallion consented to such an amendment. However, the
    Raitmans declined to do so.

[5]

The trial judge found as a fact that the Raitmans had contracted with
    Medallion and not with MDC. Nonetheless, he examined the Raitmans claim as if
    Medallion had been properly named. Having done so, he dismissed their claim.

[6]

The Raitmans then commenced another action naming both MDC and Medallion
    as parties. It was dismissed on June 4, 2014.

[7]

On July 18, 2014, the moving party brought a motion requesting an
    extension of time to file a notice of appeal in the original action. Feldman
    J.A. dismissed this motion on September 11, 2014. She noted problems with
    prejudice to the respondent and the merits of the case and also determined that
    the justice of the case favoured dismissing the motion.

[8]

On November 5, 2014, the moving party brought a motion seeking to extend
    the time to set aside Feldman J.A.s order. MDC alleged that falsified
    documents were filed in support of that motion. In the event, the moving party
    abandoned her motion, with costs of $10,500 payable to MDC on consent.

[9]

On December 1, 2014, the moving party brought another motion for the
    same relief. This motion was dismissed by Juriansz J.A. on December 15, 2014. He
    determined that there was no indication that the Raitmans had formed the
    intention to appeal during the appeal period; a limitation period had expired
    against the proper defendant; and there was no merit in the proposed review of
    Feldman J.A.s order.

[10]

In
    our view, the moving partys motion should be dismissed.

[11]

We
    see no error in either the reasons or conclusion of Juriansz J.A.  The moving
    party failed to meet the requirements of the test for a time extension.  The justice
    of the case did not require the granting of an extension; rather it demanded
    that it be refused. Furthermore, we note that contrary to the submissions of
    the moving party, Juriansz J.A.s decision did not rest on the abandonment of
    her November 5, 2014 motion nor on her failure to pay outstanding cost orders.

[12]

The
    motion is dismissed with costs of $2,000, inclusive of disbursements and
    applicable taxes, to be paid by the moving party to MDC.  Approval of the form
    and content of the draft order by the moving party is dispensed with.

E.A. Cronk J.A.

S.E. Pepall J.A.

M.L. Benotto J.A.


