



COURT OF APPEAL FOR ONTARIO

CITATION:
Enbridge Gas Distribution
    Inc. v. Froese, 2013 ONCA 131

DATE: 20130304

DOCKET: M42141

Gillese J.A. (In Chambers)

BETWEEN

Enbridge Gas Distribution Inc.

Plaintiff (Responding Party)

and

David Froese a.k.a. David Frose

Defendant (Moving Party)

Peter B. Cozzi, for the moving party

Jennifer Heath, for the responding party

Heard in writing: February 28, 2013

On motion for an extension of time to file a Notice of
    Motion for Leave to Appeal the order of the Divisional Court (DiTomaso J.)
    dated November 14, 2012.

GILLESE J.A.:

THE MOTION BEFORE THE COURT

[1]

David Froese a.k.a. David Frose (Mr. Froese or the moving party)
    wants to appeal the order of the Divisional Court dated November 14, 2012 (the
    Order).  He does not have a right to such an appeal, as leave to appeal is
    required.

[2]

As a first step in the process, Mr. Froese has to file a Notice of
    Motion for leave to appeal to this court (the Notice).  The deadline for
    filing the Notice has passed.  Consequently, he brings a motion, in writing, seeking
    an extension of time to file the Notice.

BACKGROUND

[3]

Mr. Froese is a contractor, a long-time property maintenance manager at
    a small landscaping business, and a friend of Mr. Massey.

[4]

In November of 2008, Mr. Massey called Mr. Froese and asked for his help. 
    The septic tank system at his property in Holland Landing, Ontario (the property)
    was leaking and causing a sewage backup into his home.

[5]

Mr. Froese agreed to help.  He went to the property and spoke with Mr.
    Massey and a neighbour about the lot line, specifically where the property line
    ended.  It appears that he made these inquiries because he believed that gas
    pipes are not located on private property.  On that assumption, so long as he
    dug only on private property, he thought he could not hit a gas pipe.

[6]

Mr. Froese also visually inspected the utility lands and, digging by
    hand, located the septic pipe coming from the tank leading to the header pipe.

[7]

Mr. Froese then began using a mini-excavator to uncover the leaking
    septic tank. After digging out two or three scoops of soil, he heard a loud
    rush of air. He had ruptured a gas main belonging to Enbridge Gas distribution
    Inc. (Enbridge).

[8]

Mr. Froese did not call for a utility locate before digging, a fact that
    he acknowledged before trial.

[9]

Enbridge brought an action in Small Claims Court in which it sought to
    recover from Mr. Froese the cost of repairs to the gas main.  Its claim was
    framed in negligence.  The amount of the claim was $7,144.65.

[10]

At
    trial, Mr. Froese admitted that he failed to call for a locate and that a
    locate could have prevented the incident.

[11]

At
    first instance, Enbridge lost.  The trial judge held that Mr. Froese was not
    negligent.  He assessed Enbridges damages at $4,831.30.

[12]

Enbridge
    appealed only the question of liability to the Divisional Court.  It was
    successful.

[13]

In
    a decision dated November 14, 2012, DiTomaso J. of the Divisional Court found
    that the trial judge erred in fact and in law (the Decision.)  He held that
    the trial judge made a palpable and overriding error when he found that a
    utility locate call would not have avoided the incident.  He further held that
    but for Mr. Froeses failure to make the utility locate call, the incident
    would never have occurred.

THE ISSUE

[14]

This
    motion raises a single issue: ought the court grant an extension of time to
    file the Notice?

ANALYSIS

The Test for Extending Time

[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.

See
Rizzi v. Mavros

(2007), 85 O.R.
    (3d) 401 (C.A.).

[16]

In
    my view, lack of merit alone can be a sufficient basis on which to deny an
    extension of time, particularly in cases such as this where the moving party
    seeks an extension to file a notice of leave to appeal, rather than an extension
    of time to file a notice of appeal: see
Miller Manufacturing and
    Development Co. v. Alden
, [1979] O.J. No. 3109 (C.A.), at para. 6.

The
    Principles Applied

[17]

The
    focus of the submissions of both parties was on the merits of the proposed
    appeal.  Although the record contains very little on the length of the delay
    and reasons therefore, it is clear that the moving party had the requisite
    intention and attempted to file within time.  Further, I see nothing in the
    record to suggest that Enbridge will suffer prejudice, apart from the
    inevitable cost associated with permitting the litigation to carry on.  Accordingly,
    I will say nothing more on those matters.

[18]

I
    turn, therefore, to a consideration of the merits of the proposed appeal.

[19]

It
    is important to begin this discussion by recalling that the decision which the
    moving party seeks to appeal is one rendered by the Divisional Court exercising
    its appellate jurisdiction.  In
Sault Dock Co. v. Sault Ste. Marie (City)
,
    [1972] O.J. No. 2069, at para. 7, this court explained that, as a general rule,
    such decisions of the Divisional Court are intended to be final.  A review of such
    a decision, by the Court of Appeal, is an exception to this general rule.

[20]

Before
    granting leave, this court must be satisfied that the proposed appeal presents
    an arguable question of law, or mixed law and fact, requiring consideration of
    matters such as the interpretation of legislation; the interpretation,
    clarification or propounding of some general rule or principle of law; the
    interpretation of a municipal by-law where the point in issue is a question of
    public importance; or the interpretation of an agreement where the point in
    issue involves a question of public importance: see
Sault Dock Co.
at
    para. 8.

[21]

At
    para. 9 of
Sault Dock Co.
,
the court adds that it will also
    consider cases where special circumstances make the matter sought to be brought
    before it a matter of public importance or would where it appears that the interests
    of justice require that leave should be granted.

[22]

Finally,
    at para. 10 of
Sault Dock Co.
,
this court observes that there
    may be cases in which there is clearly an error in the judgment or order of the
    Divisional Court such that the Court of Appeal might grant leave to correct the
    error.



[23]

If
    Mr. Froese were given leave to appeal, he would argue that the trial judges
    decision was correct in law and fact.  He would contend that the Divisional
    Court erred by effectively retrying the case and substituting its findings of
    fact for those of the trial judge.  He would further contend that the
    Divisional Court made factual errors relating to such things as the likely
    accuracy of the utility locate and the location of the damaged gas pipeline.

[24]

In
    my view, the proposed appeal is largely fact based.  I do not see that it
    raises an arguable question of law, and certainly not one of the sort
    contemplated by para. 8 of
Sault Dock Co.

Nor does the
    purported appeal involve a special circumstance or a matter of public
    importance.   The questions it would raise are of importance only to the
    parties, not to the public generally.  Furthermore, I see nothing in the
    purported factual errors.

[25]

Accordingly,
    the moving party has not established that the justice of the case requires that
    an extension of time for filing of the Notice should be given.

DISPOSITION

[26]

For
    these reasons, the motion is dismissed.  If the parties are unable to resolve
    the matter of costs, they may make brief written submissions on the same within
    ten days of the date of release of these reasons.

Released: March 4, 2013 (E.E.G.)

E.E. Gillese
    J.A.


