In the Ontario Divisional Court case of Graham v 10 Tecumseh, the applicant failed to perfect his appeal in accordance with the time period required by Rule 61. The respondent, however, did not seek relief under R. 61.13 (dismissal for delay by the Registrar). Instead, the respondent brought a motion seeking an order dismissing the applicant’s appeal or, in the alternative, an order for security for costs of the appeal. In deciding these issues, Leitch J. applied the test for seeking an extension of time to either file or perfect an appeal. Leitch J. held that justice did not require an extension of time and the appeal should be dismissed for delay.
This case dealt with an appeal from a decision in which Miller J. held that there was a binding settlement agreement between the applicant and respondent, which entitled the respondent to enforce a commercial lease agreement. The applicant then brought a motion to stay Miller J.’s decision and for an injunction to be reinstated pending appeal. This motion was dismissed by Mitchell J. who noted that the time for appealing Miller J.’s decision would expire on May 24, 2015. The applicant failed to perfect the appeal within the time period required under R. 61.
In ruling on the issues, Leitch J. applied the test for seeking an extension of time to either file or perfect an appeal. That is, Leitch J. considered whether the appellant formed a bona fide intention to appeal within the relevant time period; the length of, and an explanation for the delay in filing; any prejudice to the responding party caused perpetuated or exacerbated by the delay; and, the merits of the proposed appeal. Leitch J. found that the justice of the case did not require an extension of time and the appeal was dismissed for delay.