Canada: Court Of Appeal Signifies Accommodative Approach To Procedural Requirements During Covid-19

The COVID-19 pandemic has caused extensive societal challenges, including with respect to complying with procedural steps in the judicial process. The recent decision of the Ontario Court of Appeal in Jonas et. al. v. Elliot et. al. indicates that the Court will take an accommodative approach when addressing procedural delays caused by the pandemic.

At issue in Jonas was a request for an additional month to perfect the moving parties' appeal. In January 2020, the moving parties' action against the respondents was dismissed by way of summary judgement. Shortly afterwards in February 2020, the moving parties served and filed their notice of appeal. However, due to the COVID-19 emergency, limitation and procedural time limits were suspended and the moving parties did not perfect their appeal.

In mid-July, the moving parties received a Notice of Intention to Dismiss Appeal for Delay from the Registrar of the Court of Appeal. The Notice stated that the appeal was to be perfected by August 4, 2020. At that time, counsel for the moving parties experienced significant challenges associated with COVID-19 and limited cellular and network connectivity. As a result of these difficulties, the moving parties sought a short extension from the respondents. The respondents refused the extension request on August 4, at which time it was too late to file the moving parties' materials. Still wishing to challenge the summary judgement from January 2020, the moving parties sought an extension of time until September 4, 2020, to perfect their appeal.

In considering whether to grant the extension, the Court of Appeal considered four things: whether the moving parties had formed the intention to appeal within the relevant time period; whether there was a reasonable explanation for the delay; whether the length of delay was justified; the prejudice to the respondents; and whether the merits of the appeal were arguable.

In considering these factors, and given the challenges presented by the COVID-19 pandemic, the Court ruled that the justice of the case called for the granting of the time extension. Costs were ordered against the respondents on account of there having been no reasonable basis to oppose the motion.

Originally Published by Dale & Lessmann, November 2020

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