



COURT OF APPEAL FOR ONTARIO

CITATION: Abernethy v. Canada (Attorney General), 2017 ONCA
    167

DATE: 20170228

DOCKET: M46945 (M46782)

LaForme, Pepall and Pardu JJ.A.

BETWEEN

Joan Abernethy

Moving Party (Appellant)

and

Attorney
    General of Canada
and Her
    Majesty the Queen in Right of Ontario as represented by Crown Attorneys

(Justice)
James
A. Ramsay, Ron Davidson, Jennifer
    Broderick and Lucas ONeill, Kathryn (Kathy) Rippy, and Gerry McNeilly and St.
    Josephs Healthcare (Hamilton) Director, East Region Mental Health Services,
    Judith Santone

Respondent

Joan Abernethy, acting in person

Ayesha Laldin, for the respondent

Heard: February 23, 2017

ENDORSEMENT

Background

[1]

Ms. Abernethy commenced an $8.4 million claim that alleged various
    causes of action against Ontario and Canada, as well as various provincial and
    federal employees. Among other things, it alleged misfeasance in public office,
    false imprisonment, and conspiracy.

[2]

On November 14, 2013 Canadas motion to strike parts of Ms. Abernethys
    Fresh as Amended Statement of Claim without leave to amend and dismissing her
    action as against Canada was granted. The motion judge concluded that the Fresh
    as Amended Statement of Claim failed to disclose a reasonable cause of action
    or to plead material facts supporting any of the alleged causes of action.

This Motion

[3]

Ms. Abernethy
filed a notice of appeal to
    this court on December 23, 2013 but failed to perfect her appeal within the
    required time. She then served a notice of motion in this court dated February
    10, 2014 to extend the time to appeal.
Her motion remained
    inactive and was ultimately heard by a single judge of this court sitting in
    chambers on September 9, 2016.

[4]

The chambers judge refused Ms. Abernethys
    requested relief. She found that Ms. Abernethy had an intention to appeal
    within the requisite time and that no special prejudice would result by
    granting an extension. However, she also found that Ms. Abernethy had not
    adequately explained the long delay in bringing the appeal and concluded the
    appeal lacked merit. The chambers judge ultimately held that the justice of the
    case did not compel an extension of time.

[5]

Ms. Abernethys motion before this panel is to
    review the chambers judges order pursuant to s. 7(5) of the
Courts
    of Justice Act
.

Conclusion

[6]

Having considered oral submissions and reviewed
    the motion materials, we first note that the chambers judge applied the correct
    test for the granting of an extension of time: see
D.G. v. A.F.
, 2014 ONCA 436, [2014] O.J. No. 2608. Second, the chambers judges
    exercise of discretion to deny an extension of time is accorded considerable
    deference on a s. 7(5)
Courts of Justice Act
review by a panel of this court: see,
R. v. Gatfield
, 2016 ONCA 23, 345 O.A.C. 197, at para. 11.

[7]

The chambers judge concluded the motion judge
    did not err when he held that the
Fresh as Amended Statement of Claim
    failed to disclose a reasonable cause of action or to plead material facts
    supporting any of the alleged causes of action
. She committed
    no error in doing so and was entitled to conclude that the justice of the case,
    in all the circumstances, dictates that no extension of time should be granted.

[8]

There is no reason for this panel to interfere
    with the chambers judges exercise of discretion. Ms. Abernethys motion is
    dismissed.

[9]

Canada is entitled to costs of this motion fixed in the
    amount of $500, inclusive of disbursements and all applicable taxes.

H.S.
    LaForme J.A.

"S.E. Pepall
    J.A."

G. Pardu J.A.


