2017 ONSC 734, 2017 ONSC 734

CITATION : Imperial Trim Supply Ltd. v. Am-Stat Corporation, 2017 ONSC 734 DIVISIONAL COURT FILE NO.: 029/17 DATE: 20170130 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT in the matter of the construction Lien act , R.S.O. 1990, c. C.30 RE: Imperial Trim Supply Ltd. and others v. Am-Stat Corporation BEFORE: NORDHEIMER J. COUNSEL: A. Grossi , for the moving parties, Imperial Trim Supply Ltd. and Frendel Kitchens Limited. J. Sacks, for the moving parties, Dircam Electric Ltd. and Procan Inc. R.

Moldaver Q.C., for the respondent HEARD at Toronto: January 30, 2017 E N D O R S E M E N T [ 1 ] The moving parties are four lien claimants who seek an extension of time to appeal the order of Wilton-Siegel J. dated December 6, 2016 that determined, among other things, that a mortgage, the Am-Stat Mortgage, had priority over the lien claimants.

At the conclusion of the submissions, I granted the motion, extended the time for the filing of the Notice of Appeal to Friday, February 3, 2017 and ordered that the respondent pay to the moving parties jointly, costs fixed in the amount of $3,500 inclusive of disbursements and HST, within thirty days. I said I would provide reasons for my decision subsequently and I now do so. [ 2 ] The test on a motion to extend time for filing a notice of appeal is well-settled. 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: 1. whether the moving party formed a bona fide intention to appeal within the relevant period; 2. the length of, and explanation for, the delay in filing; 3. any prejudice to the responding party that is caused, perpetuated or exacerbated by the delay; and, 4. the merits of the proposed appeal. [1] [ 3 ] In this case, it is clear on the evidence before me that the parties formed a bona fide intention to appeal within the requisite time period.

The delay in serving the Notice of Appeal is relatively short (fourteen days). The explanation for it is that counsel for the

appellants was confused as to which court the appeal lay, that is, whether it lay to the Court of Appeal or to the Divisional Court. It isnot the first time that this confusion has arisen in construction lien cases. If the appeal lies to the Court of Appeal, the moving partieshad thirty days to appeal. If it lies to the Divisional Court, the moving parties had only fifteen days to appeal. [4] Evidence of this confusion is made out by the respondent itself who, even on this motion, raises the issue of jurisdiction. The respondent points to s. 71 of the Construction Lien Act, R.S.O. 1990, c.

C.30 which reads: … an appeal lies to the Divisional Court from a judgment or an order on a motion to oppose confirmation of a report underthis Act. [5] The respondent says that the decision in question does not constitute a judgment. Consequently, it is asserted that the appealdoes not lie to this court but rather to the Court of Appeal. I do not agree. The decision in question finally disposed of the issue ofpriority as between the respondent and the lien claimants. Indeed, it effectively precludes any likelihood of recovery by the lienclaimants as the mortgage will consume all available funds.

The decision therefore constitutes a “judgment” as that term is commonlyunderstood, namely, “a court’s final determination of the rights and obligations of the parties in a case”.[2] [6] On the issue of prejudice, I accept that there may be some prejudice to the respondent from extending the time for leave toappeal because it will cause additional delay in the ultimate resolution of the underlying proceeding and the distribution of availablefunds.

However, any additional delay in the overall disposition of the proceeding will not result in prejudice of such a magnitude that themoving parties’ appeal rights should be lost. I am also told that, because of other issues, distributions are not currently being made bythe Trustee, so it appears that any delay in payment to the respondent would occur in any event. [7] Finally, I do not agree with the respondent that the appeal is without merit. I am satisfied that there is a real issue to bedetermined.

The applicants do not have to satisfy me that their appeal will be successful, just that there is a live issue to be argued. [8] Finally, I will say that I do not see any comparison between the facts of this case, and those in Ontario Wealth ManagementCorp. v. Sica Masonry and General Contracting Ltd., 2014 ONCA 500 , [2014] O.J. No. 3051 (C.A.), upon which therespondent relies, where an extension of time was refused. [9] The moving parties ought not to be deprived of their appeal rights because of the short delay in filing the Notice of Appeal.

For these reasons, I granted the motion to extend the time to file the Notice of Appeal. The moving parties, having been successful onthe motion, are entitled to their costs. NORDHEIMER J. DATE: January 30, 2017