



COURT OF APPEAL FOR ONTARIO

CITATION: Sickinger v. Sickinger, 2018 ONCA 111

DATE: 20180205

DOCKET: M48394 (C63525)

LaForme, Rouleau and van Rensburg JJ.A.

BETWEEN

Penelope Kay Sickinger

Applicant
(Respondent in Appeal)

and

Ralph Thomas James Sickinger

Respondent (Appellant)

Gary S. Joseph, for the appellant

Katherine Costin, for the respondent

Heard and released orally: February 1, 2018

REASONS FOR DECISION

[1]

The appellant brings forward evidence that was
    not before the motion judge. He asserts that when this fresh evidence is
    considered, the court will be satisfied that a reasonable explanation for his
    delay in perfecting the appeal exists and that the appeal is not entirely
    without merit.

[2]

The reason to support the admission of such
    evidence is that counsel who was assisting the appellant failed to put before
    the motion judge important evidence that was relevant to the test for extending
    time to perfect his appeal. As this court noted in
Marché DAlimentation
    Denis Th
é
riault Lt
é
e v. Giant Tiger Stores
    Ltd.

(2007), 87 O.R. (3d) 660 (C.A.), counsels
    inadvertence should not prejudice a clients cause. The interests of justice
    require the admission of this evidence.

[3]

The evidence now before the court calls into
    serious question the motion judges conclusions on the merits of the motion to
    extend time, and in particular, with respect to whether there was a reasonable
    explanation for the appellants delay. When that factor is taken into
    consideration together with all the other fresh evidence, we are satisfied that
    the justice of the case requires that the order of the motion judge and the dismissal
    for delay be set aside, and that time to perfect the appeal be extended to
    February 16, 2018.

[4]

The appellant has undertaken not to move for a
    stay of the judgment pending appeal.

[5]

There will be no costs of this motion.

H.S.
    LaForme J.A.

Paul Rouleau J.A.

K.
    van Rensburg J.A.


