Dale v. Toronto Real Estate Board, 2025 ONCA 476
Background
In Dale v. Toronto Real Estate Board, 2025 ONCA 476, the Ontario Court of Appeal outlined the legal principles regarding motions for an extension of time to perfect an appeal.
Procedural History
Dale v. Toronto Real Estate Board involves an action commenced in 2009 by several co-plaintiffs against the Toronto Real Estate Board (TREB) and other individual defendants for $540 million in damages. The plaintiffs alleged that the TREB had conspired and denied the plaintiffs access to TREB’s Multiple Listing Service. The plaintiffs brought a second action seven months later. In 2013, the parties entered into a settlement agreement and the second action was dismissed by way of a consent dismissal.
In 2015, one of the plaintiffs assigned his interest in the first action to a co-plaintiff. TREB moved to dismiss the action for delay. The motion was heard in 2023 and the court held that TREB could no longer oppose the motion as the plaintiff had assigned his interest in the action. The court further dismissed the first action for delay.
In 2023, the plaintiffs brought a motion to set aside the agreement to settle the second action alleging that TREB had breached the agreement. The same day the plaintiffs brought this motion, they commenced a third action against TREB. In the third action the plaintiffs sought the same relief as the second action against the same defendants. In response TREB moved to dismiss the third action as an abuse of process and to dismiss the motion to set aside the settlement agreement.
The parties attended a case conference in November 2023. The court directed that TREB’s motion to dismiss the plaintiffs’ motion and the third action would be heard before the plaintiffs’ motion to set aside the settlement agreement. The court further established a timetable for the plaintiffs’ responding motion record and factum.
TREB’s motion to dismiss the plaintiffs’ motion and the third action was heard by the court in December 2023. The court dismissed the motion to set aside the settlement agreement and dismissed the third action. The court held both the motion, and the third action, were attempts to re-litigate the issues raised in the prior two actions.
One of the plaintiffs, now self-represented, brought a motion seeking an extension of time to perfect his appeal. The ground of appeal the plaintiff relied upon was that the motion judge erred in finding that the plaintiff had filed no evidence to provide any basis to set aside the settlement agreement. The plaintiff argued that he served a full motion record at the case conference in 2023, but because his motion was postponed until after TREB’s motion, there was never a hearing date set for his motion so he could not file his motion record.
Motion for an Extension of Time
The court held that an extension or abridgment of time is considered in the context of rule 3.02(1) of the Rules of Civil Procedure. The court went on to hold that “[t]he overarching principle is that an extension should be granted if required by the ‘justice of the case’” and outlined the factors the court will consider which include:
1. Whether the moving party formed a bona fide intention to appeal within the relevant time period;
2. The length of, and explanation for, the delay in filing;
3. The prejudice to the responding party caused, perpetuated or exacerbated by the delay; and
4. The merits of the proposed appeal.
On the first factor, the court noted this involves a consideration of “whether the moving party formed and maintained an intention to appeal within the relevant time period.” On the fourth factor, the court held the analysis is not whether the appeal will succeed, but “whether the appeal has so little merit that the court could reasonably deny the important right of appeal.”
Decision
The court, that the “justice of the case” warranted, granted an extension of time for the plaintiff to perfect his appeal. The court held that the plaintiff met the first and second factors, particularly considering evidence from his physician regarding the reason for the delay. The court also determined there was no prejudice and TREB had not filed any evidence in this regard.
On the merits of the proposed appeal, the court expressed “serious reservations” that the plaintiff would ultimately succeed on appeal. However, the court was bound by the materials before it on the motion, which were prepared by the plaintiff himself without the benefit of counsel. The court also held that the lack of evidence from TREB as to why the plaintiff should be denied the right to appeal weighed in favour of granting an extension.
However, the court declined to extend the time until the end of August as requested by the plaintiff. The court ordered that the plaintiff perfect his appeal by August 1, 2025, as his “appeal does not appear to be strong, and it is unfair to the responding party to provide the moving party so much time.”