ZORBAWON v SALES

The Applicant unsuccessfully applied to Stay two Orders of the Court before a single Justice o the Court of Appeal. The Applicant then sought permission to Appeal that decision to a three-Judge panel, and for an extension of time for the permission to appeal Application because of a missed deadline.

Per Rule 14.5(2), Grosse J.A. stated that the Application for permission to appeal a decision of a single Appeal Judge must be sought from that Judge. Justice Grosse also held that the Court has the discretion to extend the time to file an Appeal or Application for permission to appeal. In exercising this discretion, the Court is guided by several factors, including the existence of a bona fide intention to appeal in time; whether some special circumstance exists to excuse or justify the failure to appeal; whether there is an explanation for the delay; whether the other side was not seriously prejudiced by the delay; and whether the Appeal would have a reasonable chance of success if allowed to proceed.

Other factors the Court identified included whether the proposed Appeal raised a serious issue, whether the decision was a product of a misunderstanding of the law or misapprehension of the evidence, and whether there were good reasons why a full panel of the Court should review the Order under appeal.

In reviewing the facts, the Court found that the Applicant had no special circumstance that justified his failure to meet the deadline, although Justice Grosse accepted that there was a bona fide intention to appeal the Stay decision and that the Respondent was not seriously prejudiced.

Further, Grosse J.A. held that the Application did not have a reasonable chance of success.  In taking this position, the Court held that permission to review a single judge’s decision is rarely granted and is only granted when there exist compelling reasons to require the parties to re-argue before a three-judge panel. The Court also held that the Applicant was unable to identify any error or issue in the Stay decision that would necessitate a further review by a panel.

Justice Grosse also noted that the interests of justice were a fundamental consideration in determining whether a further level of review is required. Denying the Application for permission to appeal, Grosse J.A. found that the Applicant failed to show how allowing a further review of the Stay decision would further the interests of justice.

On the issue of extending timelines for filing, Justice Grosse clarified that, while a Stay of the Court of King’s Bench Order would prevent enforcement of the Order pending proceedings in the Supreme Court of Canada, the Court had no power to extend timelines for making an Application to the Supreme Court of Canada. The Application to extend timelines was therefore also dismissed.