



COURT OF APPEAL FOR ONTARIO

CITATION: Kirby v. Hope Place Centres, 2013
    ONCA 459

DATE: 20130704

DOCKET: M42201 (M42084)

MacPherson, Rouleau and Lauwers JJ.A.

BETWEEN

Dorothy Kirby

Plaintiff (Appellant)

and

Hope Place Centres

Defendant (Respondent)

Dorothy Kirby, acting in person

Ron Craigen, for the respondent

Heard: July 3, 2013

Motion for an order varying the February 13, 2013 order
    of Justice Karen Weiler of the Court of Appeal for Ontario.

ENDORSEMENT

MacPherson and Rouleau JJ.A.

[1]

The appellant, Dorothy Kirby, brings this motion to set aside the
    decision of Weiler J.A. of this court dated February 13, 2013. In that
    decision, Weiler J.A. dismissed the appellants motion for leave to extend time
    to file a notice of appeal from the Order of Murray J. of the Superior Court of
    Justice dated June 7, 2012, which Order dismissed the appellants motion to set
    aside the Order of Gray J. of the Superior Court of Justice dated August 17,
    2011.

[2]

The appellant concedes that Weiler J.A. accurately stated the test for
    extending time to file a notice of appeal. However, the appellant asserts that
    Weiler J.A. misapplied the test in several respects.

[3]

The appellant contends that Weiler J.A. did not consider the prejudice to
    the appellant if an extension of time were not granted.  The appellant
    describes this prejudice as extreme because her civil action will not
    proceed.

[4]

The test for granting an extension of time includes prejudice to the
    respondent as a factor.  Weiler J.A. explicitly considered this factor; indeed
    she found it favoured the appellant, concluding that there is no prejudice to
    the respondent. There was no need for Weiler J.A. to go further and find that
    the appellant would be prejudiced if the motion were dismissed; this extreme
    consequence is the common result in every case in which an extension of time is
    not granted.

[5]

The appellant also asserts that Weiler J.A. ignored the justice of the
    case factor.  We disagree.  Although Weiler J.A. did not specifically mention
    this factor, it is obvious that her consideration and balancing (because the
    appellant was successful on the prejudice factor) of the other four factors was
    directed precisely at the justice of the case in the motion before her.

[6]

The appellant proposes to introduce fresh evidence, much of which is
    directed at showing that her appeal has merit.  In our view, this evidence does
    not meet the test for admission and is, therefore, not admitted.

[7]

The motion is dismissed. The respondent is entitled to its costs of the
    motion fixed at $2000, inclusive of disbursements and HST.

J.C. MacPherson J.A.

Paul
    Rouleau J.A.

Lauwers J.A. (dissenting):

[8]

The legal system does not deal well with people who are suffering from
    mental health issues, especially those who are self-represented. Fair access to
    justice can be a real problem for them. They sometimes require an unusually
    high level of judicial direction and assistance, including indulgences. Where
    there is evidence that an appellant has substantial mental health issues, as is
    shown in this case by the material in the record and the fresh evidence, it
    would, in my view, be appropriate to temper the elements in the ordinary tests
    somewhat in the interests of the justice of the case. The elements of the test
    at issue, in this case whether an extension of time to file a notice of appeal
    should be granted by the court, ought to be read through a mental health lens,
    with special focus on the actual prejudice to the responding party of granting
    the relief sought. I agree with the chambers judge that, on this record, there
    would be no real prejudice to the respondent if the appellant were given an
    extension of time to file the notice of appeal; I would therefore allow the
    fresh evidence motion and the appeal from the chambers judge, but would also
    impose peremptory orders on the appellant to move the appeal along.

P. Lauwers J.A.


