In Schwilgin v. Szivy, the Ontario Court of Appeal dismissed a self-represented litigant’s request for an extension of time to file a notice of appeal, after the litigant incorrectly had appealed an order to the Divisional Court. The case is interesting for the Court’s recognition that costs may not adequately compensate prejudice caused by granting an extension of time when the moving party refuses to pay them.

Procedural History

Mr. Schwilgin brought a largely unsuccessful motion to vary child support obligations between him and the respondent, Ms. Szivy. He incorrectly appealed the order to the Divisional Court, which dismissed the appeal for having been brought in the wrong forum. The Divisional Court also declined to exercise its jurisdiction to transfer the appeal to the Court of Appeal.

Despite the Divisional Court’s clear instructions that Mr. Schwilgin had brought his appeal in the wrong forum, Mr. Schwilgin sought an extension to seek leave to appeal the Divisional Court’s order to the Court of Appeal. The Court of Appeal subsequently denied his request on the basis that the proposed leave application was “devoid of merit”.

Mr. Schwilgin then brought a motion in the Court of Appeal for an extension of time to file a notice of appeal from the original child support order.

Analysis and Disposition

Justice Brown dismissed Mr. Schwilgin’s motion, relying on the factors set out in Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 25 (Ont. C.A.).

In particular, while Justice Brown accepted that Mr. Schwilgin formed an intention to appeal the child support order within the relevant time, he found the following factors weighed against granting an extension of time:

First, Mr. Schwilgin’s explanation for his delay was not reasonable. According to Mr. Schwilgin, the delay arose because of his mistake, as a lay person, in appealing the order to the Divisional Court. However, Justice Brown found that Mr. Schwilgin was not only a person of some sophistication, but that opposing counsel had notified him that he was appealing to the wrong court: A fact referenced by the Divisional Court in dismissing his appeal. Coupled with Mr. Schwilgin’s meritless attempt to appeal the Divisional Court’s order, Justice Brown found the absence of a reasonable explanation for delay weighed very heavily against granting the motion.

Second, there were little if any merits to Mr. Schwilgin’s appeal.

Finally, Justice Brown found that granting the motion would cause further prejudice to the respondent which could not be compensated with costs. In quashing his appeal, the Divisional Court ordered Mr. Schwilgin to pay the respondent $10,000 of costs. Mr. Schwilgin had not done so and admitted in open court that he would not do so, citing a lack of resources.  According to the respondent, Mr. Schwilgin had a number of other cost awards against him relating to their matrimonial litigation which also remained outstanding.

Against this background, Justice Brown noted that:

[23]      … Courts usually talk in terms of prejudice which cannot be compensated for by costs. But, at some point, costs themselves become an inadequate form of compensation for prejudice, especially where the party on whom they are imposed refuses to pay them.

On the facts before him, Justice Brown found that costs could not adequately compensate the respondent for any prejudice she would suffer as a result of granting the extension, since Mr. Schwilgin would not pay them.

As a result, the justice of the case favoured dismissing Mr. Schwilgin’s motion, which Justice Brown did with costs.