



COURT OF APPEAL FOR ONTARIO

CITATION: Maracle III v. Miracle, 2017 ONCA 950

DATE: 20171205

DOCKET: M48520

Pardu J.A. (In Chambers)

BETWEEN

Andrew Maracle III and Jasmin Johnson

Moving Parties (Proposed Appellants)

and

Sir Andrew Clifford Miracle

Responding Party (Respondent)

Sean Dewart, for the moving parties

Richard Watson, for the respondent

Heard: December 4, 2017

On a motion to extend the time to
    seek leave to appeal from the judgment of Justice Stanley J. Kershman of the
    Superior Court of Justice dated October 10, 2017, with reasons for judgment
    reported at 2017 ONSC 5876, dismissing an application to set aside an arbitral
    award.

ENDORSEMENT

[1]

The moving parties, Andrew Maracle III and
    Jasmin Johnson, seek leave to extend the time to move for leave to appeal a
    decision of the Superior Court of Justice, confirming an arbitral award in
    favour of the responding party, Sir Andrew Clifford Miracle. That decision was
    dated October 10, 2017.

[2]

The moving parties former counsel (not counsel
    on the appeal) mistakenly thought he had 30 days following October 10, 2017 to
    serve a notice of motion seeking leave to appeal, rather than 15 days as
    prescribed by r. 61.03.1(3) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. In this case, the former counsel attempted
    service of a notice of appeal in which he sought an extension of time to seek
    leave to appeal on November 2, 2017.

[3]

The parties agree on the applicable principles
    governing this motion as described at paras. 14 and 15 of
Reid v.
    College of Chiropractors
, 2016 ONCA 779:

The test on a motion
    to extend time is well-settled. The governing principle is whether the justice
    of the case requires that an extension be given:
Rizzi v. Mavros
, 2007 ONCA 350
, 85 O.R. (3d) 401, at para. 17;
Enbridge Gas Distribution
    Inc. v. Froese
, 2013 ONCA 131, 114 O.R. (3d) 636, at para.
    15. Each case depends on its own circumstances. The relevant considerations
    include:

a)

whether
    the moving party formed a
bona fide
intention to seek leave to appeal
    within the relevant time period;

b)

the
    length of, and explanation for, the delay in filing;

c)

any
    prejudice to the responding party, caused, perpetuated or exacerbated by the
    delay; and

d)

the
    merits of the proposed appeal.

See
Rizzi
,

at para. 16;
Froese
, at
    para. 15.

This court has held that 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 of time to file a notice of leave to
    appeal, rather than an extension of time to file a notice of appeal:
Miller
    Manufacturing and Development Co. v. Alden
, [1979] O.J. No. 3109 (C.A.),
    at para. 6;
Froese
, at para. 16.

[4]

The responding party concedes that the failure
    to meet the deadline occurred as a result of the moving parties lawyers error
    and that there is no prejudice flowing from that short delay.

[5]

The responding partys position is that the
    moving parties are unlikely to get leave to appeal. On that ground, it submits
    leave to extend the time to file a notice of motion for leave to appeal should
    be refused.

[6]

The moving party, Andrew Clifford Maracle III,
    and the respondent are son and father. These parties signed a partnership
    agreement to run a business selling cigarettes and gasoline. That agreement
    contained a mandatory arbitration clause. The father sued the son, alleging
    that the son had misappropriated the profits from the partnership. The father
    also sued Jasmin Johnson, the sons wife, alleging that she signed cheques on
    the partnerships account without having signing authority. Ms. Johnson was not
    party to the partnership agreement.

[7]

The father made wide ranging claims against Ms. Johnson
    in his statement of claim relating to the partnership, including allegations
    that both moving parties breached their fiduciary duty to the Plaintiff by
    taking the Plaintiffs share of the partnerships assets and profits and by
    furthering their own interests over those of the Plaintiff. These Defendants
    also conspired to defraud and committed conversion by taking the Plaintiffs
    partnership assets and profits. He sought a tracing order, an accounting of
    profits, and claimed a constructive trust over the moving parties assets.

[8]

On May 9, 2016, Scott J. of the Superior Court
    of Justice made a consent order that the plaintiff and the defendants, Maracle
    and Johnson, will attend binding arbitration in Kingston, ON.

[9]

The moving parties and the responding party signed
    an arbitration agreement dated October 7, 2016, acknowledging that the
    Plaintiff and the Defendants have agreed to proceed to an arbitration of their
    dispute.

[10]

The arbitrator made a substantial award in
    favour of the father against the son. He refused to make any findings in
    relation to the dispute between the father and his daughter-in-law because she
    was not a party to the partnership agreement, despite the agreement of all
    parties that they would submit their disputes to binding arbitration. The
    arbitrator did not invite submissions from the parties on his final decision to
    decline to exercise jurisdiction over the disputes involving Ms. Johnson. The
    moving parties submit that this was procedurally unfair.

[11]

As the above review of the pleadings illustrate,
    the allegations against Ms. Johnson were inextricably intertwined with the disputes
    related to the partnership and the accounting of profits. On its face, the
    dispute between Ms. Johnson and the father fell within the terms of the
    arbitration agreement that both parties signed. It is arguable that the
    arbitrator did not act with procedural fairness when he declined to arbitrate the
    disputes between the father and Ms. Johnson in the absence of submissions from
    the parties. There is no indication that any of the parties raised this issue
    of excluding Ms. Johnson from the issues to be dealt with by the arbitrator.

[12]

Section 46(1) of the
Arbitration Act,
    1991
, S.O. 1991, c. 17
provides that a court may set aside an arbitral award if a party
    was not treated fairly, or if the arbitration procedures did not comply with
    the Act.

[13]

The application judge indicated that he did not see
    what benefit would be gained by an arbitration between Clifford and Jasmin,
    and concluded that going to trial in relation to the dispute between Jasmin and
    the father would not result in duplication, inconsistent findings or multiple
    proceedings. This conclusion may be doubtful, given the pleadings that connect
    the partnership issues with the other claims against Ms. Johnson.

[14]

The responding party argues that his son cannot
    possibly be affected by the arbitrators refusal to deal with the claims
    against his Ms. Johnson. Given the extent to which the claims against each moving
    party are intertwined, I disagree with this submission.

[15]

I recognize that the moving parties may face a
    more rigorous test for leave, given that this motion for leave to appeal asks
    for a second review of an arbitral decision. However, I am persuaded that given
    the brevity of the delay, and the absence of prejudice, the interests of justice
    in this case requires the moving parties be given an opportunity to persuade
    this court that leave should be granted.

[16]

Given the state of the record, I am not prepared
    to attach any conditions to the extension of time. Moreover, given my analysis
    above, I do not need to rule on the admissibility of certain emails containing
    references to settlement discussions in the record since they were not
    considered in making this decision.

[17]

The motion is allowed and the moving parties are
    given 10 days from the date of release of this decision to file a motion for
    leave to appeal from the decision of Kershman J. dated October 10, 2017.

[18]

Costs should follow the result. Costs are fixed
    in the moving parties favour at $3,568.53, payable within 30 days.


