



COURT OF APPEAL FOR ONTARIO

CITATION: Toronto-Dominion Bank v. Bolus, 2014 ONCA 238

DATE: 20140327

DOCKET: M43466

Hoy A.C.J.O. (In Chambers)

BETWEEN

The Toronto Dominion Bank

Plaintiff (Respondent)

and

Kathleen Emma Bolus also known as Kathleen E.
    Romand

Defendant (Appellant)

Jayson W. Thomas, for the defendant (appellant)

Nicole Brown Dunbar, for the plaintiff (respondent)

Heard:  March 24, 2014

ENDORSEMENT

[1]

On November 15, 2013, the motion judge granted summary judgment in
    favour of The Toronto Dominion Bank (the Bank) for payment of amounts
    Kathleen Bolus owed it on a line of credit, secured by a mortgage on her home.
    The motion judge also summarily dismissed Ms. Bolus counterclaim against the
    Bank for breach of fiduciary duty.

[2]

Ms. Bolus seeks an order extending the time to file a Notice of Appeal
    of the November 15, 2013 judgment, to the extent it dismisses her counterclaim
    against the Bank for breach of fiduciary duty.  She does not seek to otherwise
    appeal the judgment against her.

[3]

The following factors are relevant on a motion to extend time to file a
    notice of appeal: (1) whether the appellant formed an intention to appeal
    within the relevant time period; (2) the length of, and explanation for, the
    delay; (3) the prejudice to the respondent; (4) the merits of the appeal; and
    (5) whether the justice of the case requires it:
Kefeli v. Centennial
    College of Applied Arts and Technology
(2002), 23 C.P.C. (5
th
)
    35 (C.A.).

[4]

I deal with them in turn.

[5]

The only evidence as to the first factor  whether Ms. Bolus formed an
    intention to appeal within the relevant period  is Ms. Bolus own evidence. 
    She did not provide an affidavit of her lawyer on the summary judgment motion,
    Mr. Barnwell, who, she says, advised me that I should appeal the Judgment but
    he did not want to pursue the appeal himself. In and around the same time
    period, Mr. Barnwall filed a Notice of Appeal of another judgment against Ms.
    Bolus, and he remained on record as her counsel in this matter until at least February
    3, 2014. In her reasons, the summary judgment motion judge noted that Ms. Bolus
    had failed to disclose a $150,000 second mortgage when applying to the Bank for
    an increase in her line of credit. The judge also found that Ms. Bolus
    assertion that the Bank had encouraged her to increase her level of
    indebtedness was inconsistent with the documentary evidence. Given these
    findings going to Ms. Bolus credibility, and Mr. Barnwalls involvement at the
    relevant time, more than Ms. Bolus own assertion that she intended to appeal
    within the relevant time period is required.

[6]

As to the second factor  the length of, and explanation for, the delay
     Ms. Bolus current counsel, Mr. Thomas, contacted counsel for the Bank on
    February 10, 2014 to schedule this motion. Thereafter, some delay ensued in
    scheduling this motion because the Bank took the position that Mr. Barnwall was
    still on the record, and it therefore could not deal with Mr. Thomas. The
    Banks counsels planned holidays caused further delay. Without resistance from
    the Bank, Mr. Thomas argues that the relevant period of delay is therefore from
    December 16, 2013 until February 10, 2014.

[7]

Ms. Bolus is a 73 year old widow who suffers from a number of medical
    conditions, including anxiety and depression. She provides full-time care to
    her adult, autistic son.

[8]

Ms. Bolus says she was not aware of the 30-day time limit until after
    the expiry of the 30-day period. She explains that she relied on an internet
    article that indicated that appeals must be filed 30 to 90 days after the
    judgment is entered and notice given and instructed readers to [c]heck with the
    clerks office or the self-help center to figure out the deadline.  However,
    she did not check with the clerks office or self-help center to determine what
    the appeal period was.

[9]

Ms. Bolus also explains that her autistic son went missing for a period
    of six hours on December 9, 2013, and that it took her nearly a month to
    recover sufficiently from the devastating effect this incident had on her to
    resume her search for a lawyer. She succeeded in retaining Mr. Thomas on
    February 6, 2014. She provides no details of efforts made to retain other
    counsel.

[10]

While,
    on its face, Ms. Bolus failure to follow up, as directed by the article on
    which she says she relied, to verify the appeal period is not reasonable,  her
    mental health and the burden of caring for her son in my view provide a
    sufficient explanation for the delay.

[11]

The
    third factor does not militate against granting this motion: the Bank does not
    argue that it would suffer prejudice if the extension were granted.

[12]

The
    fourth factor  the merits of the appeal  is, however, determinative of this
    motion. This factor requires that I consider the merits of the appeal, not with
    a view to determining whether the appeal will succeed, but to determine whether
    it has so little merit that the court could reasonably deny the important right
    of an appeal: see
Issasi v. Rosenzweig
, 2011 ONCA 112, 277 O.A.C. 391,
    at para. 10.

[13]

I
    am satisfied that the appeal is wholly without merit, and that the requested
    extension should accordingly not be granted.

[14]

Ms.
    Bolus went to the Bank to increase her already sizeable line of credit in order
    to consolidate her other debts.   At that point, her payments to the Bank and
    her other creditors exceeded her monthly income. The Bank declined her request
    for further credit due to her poor credit rating, and offered to refer her to
    an alternative lender.

[15]

Ms.
    Bolus signed a form authorizing the Bank to provide information to prospective
    lenders.  In that form, Ms. Bolus agreed that the Bank could receive a referral
    fee, and agreed to indemnify the Bank for any damages and costs the Bank might
    sustain as a result of the referral. Ms. Bolus succeeded in securing a second
    mortgage, with Stormy Daze Investments Ltd., which permitted her to pay off her
    existing second mortgage and consolidate her debts. The Bank received a modest
    referral fee. Ms. Bolus subsequently defaulted on her line of credit to the
    Bank and the second mortgage.

[16]

Ms.
    Bolus argues that the Bank owed her a fiduciary duty, and breached that duty by
    referring her to an alternative lender, and set her up to fail. The summary
    motion judge concluded that there was no evidence to support Ms. Bolus
    assertion that the Bank owed her a fiduciary duty.  I agree. Moreover, there
    was evidence that the debt consolidation benefitted Ms. Bolus.

[17]

Given
    that the appeal is without merit, the interests of justice do not require that
    an extension of time to file the appeal be granted.

[18]

This
    motion is accordingly dismissed.

[19]

The
    Bank shall be entitled to costs of the motion, in the amount of $3,500,
    inclusive of disbursements and HST.

Alexandra
    Hoy A.C.J.O.


