Brent v. Brent, (2004) 183 O.A.C. 187 (CA)

• Judge: Feldman, J.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 08, 2003
• Jurisdiction: Ontario
• Citations: (2004), 183 O.A.C. 187 (CA)

Brent v. Brent (2004), 183 O.A.C. 187 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. FE.099

Martha Jean Brent (applicant/respondent) v. Robert James Brent (respondent/appellant)

(M30376)

Indexed As: Brent v. Brent

Ontario Court of Appeal

Feldman, J.A.

February 17, 2004.

Summary:

A husband appealed an arbitration award to the Superior Court. The appeal was quashed on the ground that it was to the wrong court. The husband served a Notice of Appeal within the limitation period, but an administrative error in his lawyer's office resulted in the Notice being filed several days after the time for doing so expired. The husband moved to extend the time for filing the Notice of Appeal.

The Ontario Court of Appeal, per Feldman, J.A., extended the time to file the Notice of Appeal. The court noted that the extension of time related only to the appeal from the Superior Court order quashing the arbitration appeal, not the appeal from the arbitration award itself.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - A husband appealed an arbitration award to the Superior Court - He did nothing to move the appeal along, preferring to seek, on an ongoing basis, to have the arbitrator amend her report - The wife sought to quash the Notice of Appeal on the ground of delay and submitting that it was to the wrong court - The Superior Court quashed the appeal on the ground that it was to the wrong court - The issue of delay was not dealt with - The husband served the Notice within the required time limits, but was several days late in filing the Notice because of an administrative error in his lawyer's office - The husband moved to extend the time to file the Notice of Appeal - After considering the husband's intention to appeal from the beginning, the reasons for the delay, the merits of the appeal and the prejudice to the wife, the Ontario Court of Appeal, per Feldman, J.A., extended the time to file the Notice of Appeal respecting the Superior Court's decision to quash the appeal.

Cases Noticed:

R. v. Church of Scientology of Toronto and Zaharia (1986), 13 O.A.C. 17; 25 C.C.C.(3d) 149 (C.A.), refd to. [para. 9].

R. v. Thomson Newspapers Ltd. et al. (1994), 77 O.A.C. 20; 121 D.L.R.(4th) 42 (C.A.), refd to. [para. 9].

R. v. Bernardo - see R. v. Thomson Newspapers Ltd. et al.

R. v. Vaillancourt (1989), 33 O.A.C. 234 (C.A.), refd to. [para. 9].

R. v. Hamilton (E.) (1997), 98 O.A.C. 363; 33 O.R.(3d) 202 (C.A.), refd to. [para. 9].

R. v. E.F.H. - see R. v. Hamilton (E.).

R. v. Metro News Ltd. (1985), 11 O.A.C. 58; 21 C.C.C.(3d) 492 (C.A.), refd to. [para. 9].

R. v. Jones (E.M.) and Francis (G.G.) (1996), 94 O.A.C. 394; 111 C.C.C.(3d) 351 (C.A.), refd to. [para. 9].

Kilpatrick v. Peterborough Civic Hospital (1999), 119 O.A.C. 160; 44 O.R.(3d) 321 (C.A.), refd to. [para. 9].

Rothgiesser v. Rothgiesser (2000), 128 O.A.C. 302; 46 O.R.(3d) 577 (C.A.), refd to. [para. 9].

Frey v. MacDonald (1989), 33 C.P.C.(2d) 13 (Ont. C.A.), refd to. [para. 10].

Counsel:

Daniel S. Melamed, for the appellant;

Avra Rosen, for the respondent.

This appeal was heard on December 8, 2003, in Chambers before Feldman, J.A., of the Ontario Court of Appeal, whose following judgment was released on February 17, 2004.