Duca Community Credit Union Ltd. v. Giovannoli et al., (2001) 142 O.A.C. 146 (CA)

JudgeMacPherson, J.A.
CourtCourt of Appeal (Ontario)
Case DateDecember 18, 2000
JurisdictionOntario
Citations(2001), 142 O.A.C. 146 (CA)

Duca Com. Credit v. Giovannoli (2001), 142 O.A.C. 146 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. JA.047

Duca Community Credit Union Limited (plaintiff/appellant) v. Benito Giovannoli, Sam Stabile, Sartan Manufacturing Limited, Master Tube Manufacturing (1993) Ltd., 580129 Ontario Limited, Tony Valenti, Mario Donatelli, Giovannoli Investments Ltd., Julsta Investments Ltd., and Clifford Hemming (defendants/respondents)

(M26647)

Indexed As: Duca Community Credit Union Ltd. v. Giovannoli et al.

Ontario Court of Appeal

MacPherson, J.A.

January 12, 2001.

Summary:

Civil Procedure Rule 61.04(1) required an appellant to serve a notice of appeal within 30 days after the date of the order appealed from. An appellant moved for a declaration that the 30 day period did not commence to run until the disposition of costs by the trial judge. Alternatively, the appellant requested an order extending the time to serve and file a notice of appeal.

The Ontario Court of Appeal, per MacPherson, J.A., granted the appellant an extension of time to serve and file its notice of appeal.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - An appellant unsuccessfully attempted service on the last day of the limitation period for serving its notice of appeal - The appellant was therefore late by one day in serving and by four or five days in filing the notice - The appellant's solicitor believed that the time to appeal had not formally commenced to run under Civil Procedure Rule 61.04(1) since the trial judge had not disposed of costs - It was the appellant's intention to wait until the decision on costs was released and then serve the notice of appeal again - The appellant sought an extension of time to file and serve the notice - The Ontario Court of Appeal, per Macpherson, J.A., granted an extension under rule 2.02(1) - The appellant had a firm intention of appealing and adequately explained its failure to observe the time limit - Finally, the respondents would not be prejudiced by granting an extension.

Cases Noticed:

Frey v. MacDonald (1989), 33 C.P.C.(2d) 13 (Ont. C.A.), refd to. [para. 12].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 3.02(1) [para. 12]; rule 61.04(1) [para. 1].

Counsel:

Valerie Edwards, for Duca Community Credit Union Ltd.;

William Andrews, Q.C., for Sam Stabile, 580129 Ontario Ltd. and Julsta Investments Ltd.;

Carmen Bush, for Clifford Hemming

This matter was heard in chambers on December 18, 2000, by MacPherson, J.A., of the Ontario Court of Appeal, who released the following decision on January 12, 2001.

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34 practice notes
  • Court Of Appeal Summaries (March 7 ' 11, 2022)
    • Canada
    • Mondaq Canada
    • March 16, 2022
    ...ss. 248, 255, Jadhav v. Jadhav, 2020 ONCA 19, Issasi v. Rosenzweig, 2011 ONCA 112, Duca Community Credit Union Ltd. v. Giovannoli (2001), 142 O.A.C. 146 (C.A.), Denomme v. McArthur, 2013 ONCA 694, Derakhshan v. Narula, 2018 ONCA 658, Reid v. College of Chiropractors of Ontario, 2016 ONCA 77......
  • Ontario Court Of Appeal Summaries (May 27 – 31, 2019)
    • Canada
    • Mondaq Canada
    • June 17, 2019
    ...to Appeal, Rules of CivilProcedure, Rule 3.02, Denomme v. McArthur, 2013 ONCA 694, Duca Community Credit Union Ltd. v. Giovannoli (2001), 142 O.A.C. 146 (C.A.) Dussault v. Imperial Oil Limited, 2019 ONCA 448 Keywords: Employment Law, Wrongful Dismissal, Damages, Calculation, Mitigation, Red......
  • Court Of Appeal Summaries (June 14 ' 18)
    • Canada
    • Mondaq Canada
    • June 23, 2021
    ...Rules 63.01(1), 66, Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, Duca Community Credit Union Limited. V. Giovannoli (2001), 142 O.A.C. 146 (C.A.) CIVIL DECISIONS Tataryn v. Axa Insurance Canada, 2021 ONCA 413 [Roberts, Miller and Thorburn JJ.A.] Counsel: A.L. Barber, for the appella......
  • Court Of Appeal Summaries (April 24, 2023 ' April 28, 2023)
    • Canada
    • Mondaq Canada
    • May 12, 2023
    ...v. Oliveira, 2022 ONCA 218,Correct Building Corporation v. Lehman, 2022 ONCA 723,Duca Community Credit Union Ltd. v. Giovannoli(2001), 142 O.A.C. 146 (C.A.),40 Park Lane Circle v. Aiello, 2019ONCA 451,2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225,Hillmount Capital Inc.......
  • Request a trial to view additional results
25 cases
  • Oliveira v. Oliveira, 2022 ONCA 218
    • Canada
    • Court of Appeal (Ontario)
    • March 17, 2022
    ...so little merit that the court could reasonably deny the important right of appeal: Duca Community Credit Union Ltd. v. Giovannoli (2001), 142 O.A.C. 146 (C.A.), at para. 14. Other factors include whether the appellant intended to appeal during the appeal period; the length of and explanati......
  • Byers v. Pentex Print Master Ind. Inc., (2003) 167 O.A.C. 159 (CA)
    • Canada
    • Ontario Court of Appeal (Ontario)
    • August 13, 2002
    ...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. David A. Zuber, for the moving party, Canadian Professional Engravers Association Inc.; A. Pe......
  • Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208
    • Canada
    • Court of Appeal (Ontario)
    • March 10, 2022
    ...right of appeal: Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 10; Duca Community Credit Union Ltd. v. Giovannoli (2001), 142 O.A.C. 146 (C.A.), at para. 14. Even where it is difficult to see the merits of a proposed appeal, a party should not be deprived of the right to app......
  • Nguyen v. Economical Mutual Insurance Co. et al., [2015] O.A.C. Uned. 837
    • Canada
    • Court of Appeal (Ontario)
    • November 30, 2015
    ...the important right of appeal: Issai v. Rosenzweig , 2011 ONCA 112, at para. 10, and Duca Community Credit Union Ltd. v. Giovannoli (2001), 142 O.A.C. 146 (C.A.), at para. 14. The merits of a proposed appeal can be decisive on a motion to extend the time for filing. Even if the other factor......
  • Request a trial to view additional results
9 firm's commentaries
  • Court Of Appeal Summaries (March 7 ' 11, 2022)
    • Canada
    • Mondaq Canada
    • March 16, 2022
    ...ss. 248, 255, Jadhav v. Jadhav, 2020 ONCA 19, Issasi v. Rosenzweig, 2011 ONCA 112, Duca Community Credit Union Ltd. v. Giovannoli (2001), 142 O.A.C. 146 (C.A.), Denomme v. McArthur, 2013 ONCA 694, Derakhshan v. Narula, 2018 ONCA 658, Reid v. College of Chiropractors of Ontario, 2016 ONCA 77......
  • Ontario Court Of Appeal Summaries (May 27 – 31, 2019)
    • Canada
    • Mondaq Canada
    • June 17, 2019
    ...to Appeal, Rules of CivilProcedure, Rule 3.02, Denomme v. McArthur, 2013 ONCA 694, Duca Community Credit Union Ltd. v. Giovannoli (2001), 142 O.A.C. 146 (C.A.) Dussault v. Imperial Oil Limited, 2019 ONCA 448 Keywords: Employment Law, Wrongful Dismissal, Damages, Calculation, Mitigation, Red......
  • Court Of Appeal Summaries (June 14 ' 18)
    • Canada
    • Mondaq Canada
    • June 23, 2021
    ...Rules 63.01(1), 66, Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, Duca Community Credit Union Limited. V. Giovannoli (2001), 142 O.A.C. 146 (C.A.) CIVIL DECISIONS Tataryn v. Axa Insurance Canada, 2021 ONCA 413 [Roberts, Miller and Thorburn JJ.A.] Counsel: A.L. Barber, for the appella......
  • Court Of Appeal Summaries (April 24, 2023 ' April 28, 2023)
    • Canada
    • Mondaq Canada
    • May 12, 2023
    ...v. Oliveira, 2022 ONCA 218,Correct Building Corporation v. Lehman, 2022 ONCA 723,Duca Community Credit Union Ltd. v. Giovannoli(2001), 142 O.A.C. 146 (C.A.),40 Park Lane Circle v. Aiello, 2019ONCA 451,2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225,Hillmount Capital Inc.......
  • Request a trial to view additional results

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