Byers v. Pentex Print Master Ind. Inc., (2003) 167 O.A.C. 159 (CA)

• Judge: Carthy, Laskin and Borins, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 13, 2002
• Jurisdiction: Ontario
• Citations: (2003), 167 O.A.C. 159 (CA)

Byers v. Pentex Print Master Ind. Inc. (2003), 167 O.A.C. 159 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. JA.002

Tammy Byers, by her Litigation Guardian David Byers, Gail Byers and the said David Byers (plaintiffs/appellants/responding parties) v. Pentex Print Master Industries Inc., Dosey George Black and Canadian Professional Engravers Association Inc. (defendants/respondents/moving parties)

(M28623; C38114)

Indexed As: Byers v. Pentex Print Master Industries Inc. et al.

Ontario Court of Appeal

Carthy, Laskin and Borins, JJ.A.

January 8, 2003.

Summary:

The appellants appealed from the dismissal of their action. The respondents moved to quash the appeal on the ground that it was not commenced within the time stipulated by rule 61.04(1).

The Ontario Court of Appeal dismissed the motion. Although the appellants failed to serve their notice of appeal within the time stipulated by rule 61.04(1), the court extended the time to serve the notice of appeal to the date on which it was actually served.

Practice - Topic 9000

Appeals - Notice of appeal - Time for filing and service of notice of appeal or reply - The appellants' claim for damages was dismissed by a jury on November 26, 2001, and the trial judge dismissed the action in accordance with the jury's verdict - On April 10, 2002, the trial judge released her decision on costs - On April 23, 2002, the appellants served a notice of appeal asking that the jury's decision on liability be set aside - The Ontario Court of Appeal held that the notice of appeal was served out of time - The court stated that an unresolved costs issue did not prevent the judgment on the merits from taking effect and becoming final and appealable from the date that it was rendered - Under rule 61.04(1), the notice of appeal had to be served within 30 days from that date - The subsequent resolution of costs did not extend the time for appealing the decision on the merits to when the court pronounced its costs judgment, which was a separately appealable judgment under s. 133(b) of the Courts of Justice Act - See paragraph 43.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - The appellants appealed from the dismissal of their action - The respondents moved to quash the appeal on the ground that it was not commenced within the time stipulated by rule 61.04(1) - The Ontario Court of Appeal dismissed the motion - Although the appellants failed to serve their notice of appeal within the 30 days stipulated by rule 61.04(1), the court extended the time to serve the notice of appeal to the date on which it was actually served - The court found that the appellants had always intended to appeal, but their counsel had mistakenly believed that the time to appeal did not run until the trial judge had delivered her decision on costs - The justice of the case required a consideration of the merits of the appeal - See paragraphs 45 to 47.

Practice - Topic 9005

Appeals - Notice of appeal - Interpretation of time limitations - [See Practice - Topic 9000 ].

Cases Noticed:

Murano et al. v. Bank of Montreal et al. (1998), 111 O.A.C. 241; 163 D.L.R.(4th) 21 (C.A.), refd to. [para. 13].

Permanent Investment Corp. v. Ops and Graham (Township), [1967] 2 O.R. 13 (C.A.), consd. [para. 20].

O'Sullivan v. Harty (1885), 13 S.C.R. 431, consd. [para. 24, footnote 1].

Walmsley v. Griffith (1886), 13 S.C.R. 434, consd. [para. 26].

Martley v. Carson (1886), 13 S.C.R. 439, consd. [para. 27].

Winnipeg (City) v. Wright (1887), 13 S.C.R. 441, consd. [para. 28].

International Financial Society v. City of Moscow Gas Co. (1877), 7 Ch. Div. 244, refd to. [para. 28].

Craig v. Phillips (1887), 7 Ch. Div. 250, refd to. [para. 28].

Hinton, Re; Ex parte Hinton (1875), L.R. 19 Eq. 266, refd to. [para. 28].

Elgin (County) v. Robert (1905), 36 S.C.R. 27, consd. [para. 29].

Wallace v. Bath (1904), 7 O.L.R. 542 (H.C.), consd. [para. 30].

Hickey v. Stover (1885), 11 P.R. 88 (Ont. Div. Ct.), refd to. [para. 31].

Fawkes v. Swayzie (1899), 31 O.R. 256 (Div. Ct.), refd to. [para. 31].

Hyman v. Kinkel, [1938] O.W.N. 135 (C.A.), consd. [para. 32].

Ferguson v. Ferguson and National Trust Co., [1944] 4 D.L.R. 28 (Man. C.A.), consd. [para. 33].

Texaco Canada Ltd. v. Oak Bay (1970), 72 W.W.R.(N.S.) 557 (B.C.C.A.), consd. [para. 34].

Frumento v. Shortt, Hill & Duncan Ltd. (1916), 22 B.C.R. 427, refd to. [para. 35].

Blundon v. Storm (1970), 1 N.S.R.(2d) 621; 10 D.L.R.(3d) 576 (C.A.), consd. [para. 37].

Atkinson v. Ault Foods Ltd., [1997] O.T.C. Uned. 690 (Gen. Div.), refd to. [para. 38].

Hilltop Group Ltd. v. Katana et al. (1998), 117 O.A.C. 384 (Div. Ct.), refd to. [para. 38].

Lancer Partners et al. v. Handleman Co. of Canada Ltd. et al., [1999] O.T.C. Uned. 919 (Sup. Ct.), refd to. [para. 38].

Baksh v. Sun Media (Toronto) Corp., [2002] O.J. No. 2272 (Sup. Ct.), refd to. [para. 38].

White v. New Hampshire Dept. of Employment Security (1982), 455 U.S. 445, refd to. [para. 40].

Budinich v. Becton Dickinson & Co. (1988), 486 U.S. 196, consd. [para. 40].

Frey v. MacDonald (1989), 33 C.P.C.(2d) 13 (Ont. C.A.), refd to. [para. 46].

Kefeli v. Centennial College of Applied Arts and Technology et al., [2002] O.A.C. Uned. 187 (C.A.), refd to. [para. 46].

Bratti v. Wabco Standard Trane Inc. (1994), 25 C.B.R.(3d) 1 (Ont. C.A.), refd to. [para. 47].

Duca Community Credit Union Ltd. v. Giovannoli et al. (2001), 142 O.A.C. 146; 4 C.P.C.(5th) 189 (C.A.), refd to. [para. 47].

Counsel:

David A. Zuber, for the moving party, Canadian Professional Engravers Association Inc.;

A. Peter Trebuss, for the moving parties, Pentex Print Master Industries Inc. and Dosey George Black;

Wayne P. Cipollone and Mary Marafioti, for the responding parties.

This motion was heard on August 13, 2002, before Carthy, Laskin and Borins, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Borins, J.A., and was released on January 8, 2003.