



COURT OF APPEAL FOR ONTARIO

CITATION: Grand Financial Management Inc. v. Solemio
    Transportation Inc., 2014 ONCA 829

DATE: 20141121

DOCKET: M44252 (C58867)

Sharpe, Rouleau and Pardu JJ.A.

BETWEEN

Grand Financial Management Inc.

Plaintiff (Respondent)

and

Solemio Transportation Inc., Samu Ullah

and
    Arnold Bros. Transport Ltd.

Defendants (
Appellants
)

Tim Gleason and Rebecca Liu, for the appellants

Terry Corsianos, for the respondent

Heard: November 18, 2014

On a motion for a review of the order of Benotto J.A., dated
    July 24, 2014 dismissing a motion to extend the time for filing a notice of appeal.

ENDORSEMENT

[1]

We agree with the moving party that the motion judge erred in refusing
    to grant an extension of time for filing the notice of appeal.

[2]

In our view, the motion judge erred in finding there was no proper
    evidence that the moving party had formed an intention to appeal before the
    expiry of the appeal period.  The moving partys solicitor swore an affidavit
    to the effect that upon receipt of the trial judgment, the moving party had
    instructed him to appeal immediately.  While that may have been hearsay
    evidence, it was admissible on this motion.

[3]

The respondent offered no evidence or suggestion of prejudice.  This
    case can be readily distinguished from
March
é DAlimentation Denis
    Theriault Lt
ée v. Giant Tiger
(2007), 87 O.R. (3d) 660. The delay in
    this case was short, there was an explanation for the delay and the situation
    was not one where prejudice could be inferred from the mere fact of that short
    delay.

[4]

Finally, we are of the view that the proposed appeal has sufficient
    merit to warrant an extension of time.  It is arguable that the trial judge
    allowed the claim on the basis of an agreement that was not pleaded and for
    which the limitation period may have expired.  We cannot say that the appeal is
    devoid of merit so as not to warrant an extension of time.

[5]

Accordingly, we set aside the order of the motion judge dated July 24,
    2014 and in its place, grant the order extending the time to file a notice to
    appeal to November 28, 2014.

[6]

The moving party is entitled to its costs fixed in the amount of $6,000 inclusive
    of disbursements and taxes, payable in the cause.

Robert
    J. Sharpe J.A.

Paul
    Rouleau J.A.

G.
    Pardu J.A.


