In a recent Ontario Court of Appeal decision, J.A. Lauwers granted an extension to move for leave to appeal to the Court of Appeal despite significant deficiencies in the filed matter because the ground of appeal was not without merit and it was in the interests of justice that the matter be heard.
Background
The appellants, who were self represented throughout this litigation, had been involved in an accident benefits dispute with the respondent, CAA Insurance Company, at the Licence Appeal Tribunal (LAT). Adjudicator Reilly was involved in adjudicating the hearing and found in favour of the insurer.
The appellants were unsuccessful in their reconsideration request with the LAT.
After the reconsideration was considered, the appellants became aware that Adjudicator Reilly had accepted a job for Aviva Insurance Company at the time when she was adjudicating the matter. Aviva was a different insurer than CAA, who was involved in this dispute.
The appellants appealed the LAT decision and reconsideration to the Divisional Court. They missed the deadline to initiate the appeal by 12 days and sought an extension of time, which was granted.
The Divisional Court considered whether there was a reasonable apprehension of bias when Adjudicator Reilly continued to make decisions for insurance companies while sitting on a job offer for another such company. Because Adjudicator Reilly’s future employment was with Aviva and not CAA, the Divisional Court did not find that there was an actual or reasonable apprehension of bias in the case.
The Divisional Court decision was released on December 16, 2024. Despite the 15-day deadline to file a request for leave to appeal, the appellants did not submit anything to the Court of Appeal until February 18, 2025.
The appellants had been unwilling or unable to comply with the Rules throughout the history of the proceedings, including their involvement with the Court of Appeal. They filed a motion that did not actually request leave to file their notice of appeal late.
Issue
The issue of this motion was whether to permit the appellants to proceed with their motion for leave to appeal even though it was long out of time.
Legal Principles
The test for an extension of time is as follows:
The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including
(a) Whether the moving party formed a bona fide intention to appeal within the relevant time period;
(b) The length of, and explanation for, the delay in filing;
(c) Any prejudice to the responding parties caused, perpetuated or exacerbated by the delay; and
(d) The merits of the proposed appeal.
J.A. Lauwers emphasized that the last factor, the merits, is the most important factor and can be determinative.
Discussion
There was no doubt that the appellants always intended to appeal. They offered no real explanation for the delay. They seemed to be unable to prepare and provide necessary documentation, which was surprising because one of the appellants used to be a lawyer.
Furthermore, the materials that the appellants did provide were useless, irrelevant and numerous. They were unable to follow instructions provided by the court staff across weeks of correspondence. A similar pattern was present in the history of the proceeding, including down to the LAT hearing. Justice Lauwers was tempted to refuse leave to proceed with the motion for leave to appeal due to the un-governable non-compliance of the appellants.
However, there is one matter from the Divisional Court decision that might have merit on appeal, which is the reasonable apprehension of bias allegation. The problem was set out as follows:
After the Reconsideration Hearing, it came to the attention of the appellants that Adjudicator Reilly who had participated in the LAT decision on September 12, 2022, had accepted an offer of employment with another insurer, Aviva Canada Inc. (“Aviva”) in June 2022. Her appointment to the Tribunal ended on November 4, 2022, after which she started working for Aviva in approximately December 2022.
J.A. Lauwers concluded that this ground of appeal was not without merit and was satisfied that the factors weigh in favour of granting an extension of time to seek leave to appeal. J.A. Lauwers made a number of orders to facilitate moving the matter along.
