



COURT OF APPEAL FOR ONTARIO

CITATION: Auciello v. Mahadeo, 2016 ONCA 414

DATE: 20160527

DOCKET: M46375 (C60320)

Hourigan J.A. (In Chambers)

BETWEEN

Vito Auciello

Plaintiff (Appellant)

and

Gail
    Mahadeo, Klein & Schonblum Associates, Fred Goldberg, David Wagman, Jeffery
    Wagman, Ronni Fingold, Arnold Bobkin, Forest Hill Real Estate Inc., Jan
    Perkins, McLarens Canada and Granite Claims Solutions

Defendants (Respondents)

Vito Auciello, in person

Jeremy Opolsky, duty counsel

R. Leigh Youd, for the respondents Gail Mahadeo and
    Klein & Schonblum Associates

Joseph Juda, for the respondents Fred Goldberg, David
    Wagman, Jeffery Wagman, Ronni Fingold, Arnold Bobkin and Forest Hill Real
    Estate Inc.

Murray Stieber for the respondents Jan Perkins, McLarens
    Canada and Granite Claims Solutions

Heard:  April 28, 2016

ENDORSEMENT

[1]

The appellant brings a motion seeking an order
    setting aside the order of the Registrar dismissing his appeal for delay,
    extending the time for perfection of the appeal, and permitting him to file a
    factum longer than 30 pages.

Background Facts

[2]

The background to this litigation may be
    summarized as follows.

[3]

On January 28, 2010, the appellant commenced an
    action in Small Claims Court arising out of his purchase of property in trust
    for Network Cash Mart Ltd. (Network), a company he owned. The essence of this
    claim was that the real estate brokerage involved in the transaction (the
    Forest Hill Defendants) acted negligently in failing to insert a clause in
    the agreement of purchase and sale that required the property to be transferred
    as two separate lots.

[4]

On October 27, 2010, Network commenced an action
    in the Superior Court of Justice against the Forest Hill Defendants and the
    vendor of the property, Ettie Rosen. The claim was for breach of contract
    against Ms. Rosen. It also alleged breach of contract, negligence, and breach
    of fiduciary duty against the Forest Hill Defendants, largely for the same
    reasons described in the Small Claims Court action.

[5]

On December 2, 2011, the parties entered into
    minutes of settlement, which appear on their face to settle the matters in
    issue in both proceedings. On May 17, 2013, the Forest Hill Defendants brought
    a motion to enforce the terms of the settlement. That motion was granted by
    Chiappetta J.

[6]

On December 2, 2013, the appellant commenced a
    new action against the Forest Hill Defendants. He also added as defendants the
    lawyers for the Forest Hill Defendants, Klein & Schonblum Associates, and a
    claims adjusting company acting for the Forest Hill Defendants Errors and
    Omissions insurer, Granite Claims Solutions. The appellant sued in deceit,
    conspiracy, bad faith conduct, fraudulent misrepresentation or, in the
    alternative, negligent misrepresentation. He alleged that the defendants
    conspired to deceive him and the court and thereby negotiated a settlement that
    was not in his interests.

[7]

The defendants brought a r. 21 motion to strike
    the new statement of claim. On March 10, 2015, Faieta J. granted the motion and
    struck the claim without leave to amend. He found that it did not disclose a reasonable
    cause of action and further, that it was frivolous and vexatious. He declined
    to strike out the claim on the basis that the action was
res judicata

and thus an abuse of process.

[8]

The present appeal is from the order of Faieta
    J. On January 22, 2016, Strathy C.J.O. ordered that the appellant perfect his
    appeal by Sunday, April 10, 2016. The appellant attempted to perfect his appeal
    on April 11, 2016, but his filing was rejected by staff at the Court of Appeal
    because his factum exceeded 30 pages in length.

[9]

That day the appellant wrote to responding
    counsel seeking their consent to an extension of time to perfect his appeal.
    That consent was not forthcoming. Consequently, the appellant brought this
    motion.

The Motion to Extend Time

[10]

The respondents oppose the motion, arguing that the
    appeal is devoid of merit and that there has been a long history of delay on the
    part of the appellant.

[11]

The case law regarding an extension of time in
    this court is well-established. The following five factors are relevant on
    motions to extend
the time limit that applies to perfecting
    an appeal:

(1)
    whether the appellant formed an intention to appeal within the relevant period;

(2) length
    of, and explanation for delay;

(3)
    prejudice to respondent;

(4) merits
    of the appeal; and

(5)
    whether the justice of the case requires it.

See
Issasi
    v. Rosenzweig
, 2011 ONCA 112, 277 O.A.C. 391, at
    para. 4.

[12]

The overarching principle is that an extension
    should be granted if
the justice of the case requires it:
Miller Manufacturing & Development Co. v. Alden
(1979), 13 C.P.C. 63 (Ont. C.A.), at paras. 4-5;
Frey v. MacDonald

(1989), 33 C.P.C. (2d) 13 (Ont. C.A.), at para. 3. The failure to
    meet any one factor is not necessarily fatal because consideration must be
    given to all the factors in deciding whether the overall justice of the case
    requires that leave be granted: see
Leighton v. Best
, 2014 ONCA 667,
    20 C.B.R. (6th) 326, at para. 14.

[13]

When considering the merits of the appeal, it is
    not with a view to determining whether the appeal will succeed, but only with a
    view to determining whether the appeal has so little merit that the court could
    reasonably deny the important right of appeal:
Issasi,
at para. 10; see
Duca Community Credit Union Ltd. v. Giovannoli
(2001)
,
142
    O.A.C. 146 (Ont. C.A.), at para. 15. 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:
Howard v. Martin
, 2014 ONCA 309, 42 R.F.L. (7th) 47,
    at para. 36.

[14]

Even where it is difficult to see the merits of
    a proposed appeal, a party is entitled to appeal and should not be deprived of
    that entitlement where there is no real prejudice to the other side:
Denomme
    v. McArthur
, 2013 ONCA 694, 36 R.F.L. (7th) 273, at para. 10.

[15]

The appellant clearly had an intention to appeal
    and the very short delay has been adequately explained. I am also satisfied
    that there is no prejudice to the respondents.

[16]

The real issue on this motion is whether the
    merits of the appeal are so limited that the justice of the case does not
    favour a short extension.  I agree with the respondents that the appeal is very
    weak. However, I cannot say that the appeal is entirely devoid of merit. The
    appellate has an arguable position that he should have been granted leave to
    amend in order to assert his new claims arising out of the settlement.

Disposition

[17]

I conclude that the justice of the case requires
    a short extension. The order of the Registrar, dated April 15, 2016, dismissing
    the appeal for delay is set aside. The appellant shall have until June 10, 2016
    to perfect his appeal. There is no basis to make an order permitting the
    appellant to file a factum longer than 30 pages and I decline to so order. 
    Costs of the motion are reserved to the panel hearing the appeal.


C.W. Hourigan J.A.


