



COURT OF APPEAL FOR ONTARIO

CITATION:
Teefy Developments (Bathurst Glen) Limited v. Sun, 2021 ONCA
    870

DATE: 20211206

DOCKET: M52771

Nordheimer J.A. (Motions Judge)

BETWEEN

Teefy Developments (Bathurst
    Glen) Limited

Plaintiff
(Responding Party)

and

Mei Sun also known as Sun Mei

Defendant
(Moving Party)

Paul Robson, for the moving party

Asad Moten, for the responding party

Heard: December 3, 2021 by video conference

ENDORSEMENT

[1]

Ms. Sun brings this motion for an order extending
    the time for her to appeal the judgment granted by Lemon J. on February 2, 2021
    after a trial.
[1]

[2]

The action itself arises out of a failed
    residential real estate transaction. The moving party agreed to purchase a new
    home to be built by the responding party in a subdivision in the City of
    Vaughan. When the time for closing arrived, the moving party failed to close.
    The responding party then sued her for damages that arose from the failed
    transaction.

[3]

The responding party brought a motion for
    summary judgment, which the motion judge dismissed. However, the motion judge
    directed the trial of certain issues. As it turned out, those issues came on
    for trial before the same judge as had heard the summary judgment motion. After
    a two-day trial, the trial judge found in favour of the responding party and
    awarded it damages in the amount of approximately $200,000.
[2]

[4]

Two preliminary issues were raised on the
    motion. First, the moving party objected to the responding party including in
    its responding material reference to certain settlement discussions that
    occurred between the parties after the trial judgment. I agree that those
    discussions should not have been included in the record. Settlement discussions
    are presumptively privileged. I have therefore not considered the material to
    which the moving party objected in this regard.

[5]

Second, there is an issue over the date from
    which the appeal period should run. The reasons of the trial judge are dated
    February 2, 2021. However, there was a disagreement between the parties
    regarding the calculation of the damages awarded. That issue was not resolved
    until March 2, 2021 when the judgment was signed and entered. The parties have
    advised me, however, that the signed and entered judgment bears the date of
    February 2, 2021.

[6]

I do not accept the moving partys position that
    the appeal period should run from March 2, 2021. The appeal period runs from
    the time when the reasons determining the appeal are released. Procedural
    issues that may arise after the reasons are released, including disagreements
    over calculations or dates or interest or the like, do not change the date when
    the action was determined. It is that date from which the appeal period runs.
    In this case that date is February 2, 2021.

[7]

The test for extending the time for an appeal is
    well-established. Four factors are to be considered, as set out 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. [Citations omitted.]

[8]

I am not satisfied that the moving party has met
    her obligation to satisfy (a), (b) or (d) of these factors. On the first
    factor, the evidence as to the intention to appeal is decidedly unclear. Prior
    to speaking to her current lawyer, the moving party had spoken with her trial lawyer
    and then with another lawyer. It is not apparent why either of those lawyers
    did not pursue an appeal, if that is what the moving party wanted. Indeed, the
    moving party, in her affidavit, appears to tie her intention to appeal to her
    communications with her current counsel which she, herself, places in April
    2021, which would be two months after the trial decision was released. Even
    that date is questionable given the evidence that the moving party did not sign
    a retainer agreement with her current counsel until May 19, 2021. Further, and
    for reasons that are unexplained, her current lawyer did not contact the responding
    partys lawyers until June 15, 2021.

[9]

I pause, at this point, to reflect on a rather
    disturbing issue regarding the moving partys affidavit filed on this motion. Her
    counsel advises that the moving party does not read English. When I inquired
    how she could have then sworn her affidavit in these proceedings, I was met
    with the remarkable response that everyone knows that affidavits are prepared
    by lawyers and clients simply sign what the lawyers tell them to sign.

[10]

It should go without saying that that is not the
    way that any affidavit is properly prepared. The deponent of an affidavit is
    required to review its contents and swear or affirm to its truth. It is the obligation
    of the person commissioning the affidavit to ensure, among other things, that
    he or she administers the oath or declaration in the manner required by law
    before signing the jurat or declaration:
Commissioners for Taking
    Affidavits Act
, R.S.O. 1990, c. C.17, s. 9(3). If the deponent does not
    understand English, then the affidavit must be translated for the deponent and
    the jurat on the affidavit must be changed to reflect that fact.

[11]

The result, in this case, from the apparent
    failure to follow those fundamental procedures, is that it calls into question
    the reliance that I can safely place on the contents of the moving partys
    affidavit.

[12]

On the second factor, there is no reasonable
    explanation for the delay in launching this motion until July 23, 2021.
[3]
Taking the moving partys
    position at its highest, she formed her intention to appeal in April 2021. The
    only explanation for why the motion was not launched until July 2021 is an
    asserted delay in getting the file from trial counsel. That is not a
    satisfactory explanation. The moving party had the trial judges reasons. By
    April, she had had them for a couple of months. The issues that are raised by
    her with respect to those reasons would be apparent from the face of the
    reasons themselves. It is not acceptable for the moving party to suggest that
    she should be allowed yet further time while counsel considered all of the
    specifics of the case and all of the materials involved in it. The time to
    appeal was running  indeed it was already passed  and steps ought to have
    been taken immediately to address that delay.

[13]

Most importantly, however, is the fourth factor.
    I see very little merit in this appeal. In the moving partys factum, 21
    grounds of appeal are suggested. Only three were urged on the motion:
non
    est factum
; lack of independent legal advice; and a conflict between the
    trial evidence and the Agreed Statement of Facts filed.

[14]

I do not see any merit in the first two grounds.
Non est factum
was not pleaded, and I do not see any basis for
    criticizing the trial judge for not considering a defence that was not pleaded.
    Actions are decided on the basis of the pleadings. Affirmative defences must be
    pleaded:
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, r. 25.07(4).
    I also do not see any basis for the advancement of a defence that independent
    legal advice was not provided. This is not a case of a person who is
    contracting in support of another person, such as one spouse guaranteeing the
    obligations of the other spouse. Here, the moving party contracted directly to
    purchase the home. There was no requirement on the responding party to ensure
    that she had independent legal advice before signing the agreement of purchase
    and sale.

[15]

As for the complaint that the trial judge erred
    in relying on the Agreed Statement of Facts when he rejected contrary
viva
    voce
evidence, while that might be a concern in another case, I do not see
    it as one in this case. The parties agreed on certain facts. It appears that a
    non-party gave some evidence that contradicted one of those facts. I do not see
    any error, in those circumstances, when the trial judge decides the case on
    what the parties have agreed are the facts, even if a non-party might have a
    different position. However, even if that is an issue in this case, it is not
    one that I view as having sufficient merit, or sufficient impact on the result,
    that it would carry the day on the fourth factor.

[16]

For the sake of completeness, I will mention the
    third factor briefly, that is, prejudice to the responding party. There is no
    prejudice here of the type that would preclude an extension of time. The fact
    that the responding party may be delayed in enforcing its judgment, and that it
    will incur legal expenses responding to the appeal, is not the type of
    prejudice to which the third factor is directed. If it were otherwise, every
    respondent to a proposed appeal would be able to satisfy the prejudice factor.
    In my view, this case is distinguishable from
Bobel v. Humecka
, 2021
    ONCA 757, on this very narrow point.

[17]

In the result, the moving party has failed to
    meet her obligations to satisfy the necessary factors that would warrant
    extending the time for an appeal. It may well be that the moving party has a
    claim against others who were involved in the transaction which she is, of
    course, free to pursue separate and apart from this action. That does not
    change the fact that she has failed to satisfy me that there are sufficient
    reasons to extend the time for her proposed appeal of the trial decision.

[18]

For these reasons, the motion for an extension
    of time to appeal is dismissed. The responding party is entitled to its costs
    of the motion, which I fix in the amount of $7,500, inclusive of disbursements
    and HST.

I.V.B.
    Nordheimer J.A.





[1]

Teefy Developments v. Sun
,

2021 ONSC 853.



[2]

The parties did not provide me with a copy of the signed and
    entered judgment, so I am unaware of the exact amount awarded.



[3]

Pursuant to an agreement between the parties, the more than
    four months that have passed since July 23, 2021 are not to be considered under
    this factor.


