COURT OF APPEAL FOR ONTARIO

CITATION:
Krause
    v. Bougrine, 2022 ONCA 161

DATE: 20220224

DOCKET: C69816

MacPherson, van Rensburg and Roberts JJ.A.

BETWEEN

Interjurisdictional Support Orders Unit Director,
    Family Responsibility Office for the benefit of Catarina Elisabet Krause

Applicant/Respondent

(Appellant)

and

Hassan Bougrine

Respondent/Appellant

(Respondent)

and

Catarina Elisabet Krause

Respondent/Respondent

(Respondent)

Heather Puchala and Michelle Douglas-Cummings, for the
    appellant

Dhiren R. Chohan and Matthieu M. Butler, for the
    respondent

Catarina Krause, acting in person

Heard: January 27, 2022 by video conference

On appeal from the judgment of Justice R. Dan Cornell of
    the Superior Court of Justice, dated August 10, 2021 and reported at 2021 ONSC
    5269, allowing the appeal from the judgment of Justice Andre L. Guay of the
    Ontario Court of Justice dated May 29, 2019 and the final order dated October
    19, 2020.

MacPherson J.A.:

A.

introduction

[1]

This appeal involves a payor (or, more accurately, a non-payor) who
    resides in Ontario, a recipient of child support for her two children who
    resides in Finland, and the Interjurisdictional Support Orders Unit (the ISO Unit)
    which is pursuing the appeal for the benefit of the support recipients.

[2]

The ISO Unit of the Family Responsibility Office administers Ontarios
Interjurisdictional
    Support Orders Act, 2002
, S.O. 2002, c. 13 (
ISO Act
), which
    streamlines the process for obtaining, varying and enforcing support orders
    involving one party who lives in Ontario and one party in a reciprocating
    jurisdiction. Once an order has been registered, established, or varied using
    the
ISO

Act
, it can be filed with the Family Responsibility
    Office (FRO) for enforcement. The FRO will then enforce such an order the
    same way it would enforce an Ontario order.

[3]

The central issue on the appeal is whether an Ontario court can make a
    support order when one already exists in Finland. More specifically, the appeal
    concerns the jurisdiction of the Ontario Court of Justice to hear a support
    application and make a support order pursuant to the
ISO Act
in
    circumstances where the registration for enforcement of a foreign support order
    from a reciprocating jurisdiction (Finland) has been set aside by an Ontario
    court.

B.

facts

(1)

The parties and events

[4]

Hassan Bougrine and Catarina Krause were married in Finland in 2003.
    They divorced in 2004. There are two children from their relationship, a son
    and a daughter.

[5]

Bougrine has resided in Ontario since 2007. He has been a professor at
    Laurentian University and was Chair of the Commerce Department.

[6]

Krause has resided in Finland and raised the two children there except
    for a 14-month period in 2012-2014 when Bougrine abducted the children to
    Morocco.

[7]

In 2010, the District Court of Varsinais-Suomi in Finland awarded
    custody of the two children to Krause and made a support order requiring
    Bougrine to pay child support of 350 Euros per month per child (the Finnish
    Order). In 2011, the Finland Turku Court of Appeal dismissed Bougrines appeal
    from this decision.

[8]

For a brief period in 2009 and 2010, Bougrine paid child support of 260
    Euros per month per child. From 2010 until a temporary support order was made
    in Ontario in June 2019, he paid no child support.

[9]

Finland is a reciprocating jurisdiction for the reciprocal enforcement
    of support orders with Ontario, pursuant to the
ISO Act
and Ont. Reg.
    53/03
Reciprocating Jurisdictions
. Consequently, Finnish support
    orders can be registered for enforcement in Ontario pursuant to Part III of the
ISO Act
.

[10]

In
    2014, the ISO Unit received a letter from the Minister of Justice in Finland
    requesting the registration of the Finnish Order and the 2011 appeal Order in
    Ontario for enforcement against Bougrine and claiming support arrears of
    32,929.32 Euros as of September 17, 2014.

[11]

The
    ISO Unit sent the orders to the Ontario Court of Justice for registration for
    enforcement in Ontario under s. 18 of the
ISO Act
. The orders were
    registered on December 24, 2014 and a Notice of Registration of Order was
    served on Bougrine.

[12]

Pursuant
    to s. 20(2) of the
ISO Act
, Bougrine brought a motion in the Ontario
    Court of Justice to set aside the registration for enforcement in Ontario of
    the 2010 and 2011 Finnish Orders.

[13]

In
    support of his motion, Bougrine deposed in his affidavit that he intended to
    move to Morocco soon and that he had not received notice of the Finnish
    proceedings that led to the 2010 Finnish Order. On March 9, 2015, the motion
    judge set aside the registration of the Finnish Order on the basis that
    Bougrine did not have proper notice or a reasonable opportunity to be heard in
    relation to the foreign proceedings that led to the Finnish Order.

[14]

As
    it turns out, much of the material in the Bougrine affidavit submitted on the
    motion was false. As explained by Cornell J. six years later in his decision in
    these proceedings:

Mr. Bougrine was personally served with the originating Finnish
    application, was present during those proceedings and had the benefit of legal
    counsel. Unhappy with the result of those proceedings, Mr. Bougrine appealed.
    His appeal was unsuccessful. How could it possibly lie in the mouth of Mr.
    Bougrine to allege that he had no notice of those proceedings when he filed an
    appeal?

It is also clear that Mr. Bougrine misled the court by
    suggesting that he obtained custody of the children on February 10, 2009, from
    a court in Morocco. The record before me discloses that no such order was ever
    made. Mr. Bougrine further misled the court by suggesting that he was
    temporarily in Sudbury for employment and that his permanent residence was in
    Morocco. This is patently false. Mr. Bougrine had worked at Laurentian
    University as a full-time professor since 2007. He was the Chair of the
    Universitys Commerce Department. The record before me indicates that Mr.
    Bougrine has had a drivers licence in Canada since 2007 and that he owns real
    property in Canada.

Given this background, it is clear that the order made by
    Lische J. to set aside the registration was based upon an incomplete record and
    the misleading information that was provided by Mr. Bougrine. Had the correct
    information been before the court, it is clear that Mr. Bougrines efforts to set
    aside the registration would have failed.

[15]

In
    2018, the ISO Unit learned that Bougrine in fact continued to live and work in
    Ontario. The ISO Unit commenced proceedings in the Ontario Court of Justice
    seeking support for the children in accordance with s. 21 of the
ISO Act
.

(2)

The court proceedings and judicial decisions

(a)

Ontario Court of Justice

[16]

The
    ISO Units motion for child support for Krause came before Guay J. in 2019.
    Because the registration of the Finnish Order had been set aside, the motion was
    brought under s. 21 of the
ISO Act
, which provides:

21(1) If the registration of an order made in a
    reciprocating jurisdiction outside Canada is set aside under section 20, the
    order shall be dealt with under this Act as if it were a document corresponding
    to a support application received under paragraph 2 of section 9 or a support
    variation application received under paragraph 2 of section 32.

[17]

The
    motion judge addressed the circumstances that led to the registration of the Finnish
    Order being set aside on a motion brought by Bougrine in 2015:

As it turned out, the information given to the court by the
    respondents was misleading. There was nothing transitory about his employment
    at Laurentian University. The respondent had actually worked there as a full-time
    professor since 2007. The evidence indicated that not only was the respondent a
    full-time professor at Laurentian University, but further that he was actually
    the Chair of the Universitys Commerce Department.

It is reasonable to infer from what the respondent told the
    court on the motion to set aside registration that his arguments were designed
    to mislead the court and to defeat the applicant's claim to enforcement of her
    child support order years after that order had been made.

[18]

The
    motion judge then moved on to explain how s. 21 would operate, after the
    Ontario registration of the Finnish Order was set aside. He stated:

Notwithstanding these facts and what can be reasonably deduced
    from them, it is clear that the registration of the June 8, 2010 Finnish order
    was set aside by the Ontario Court in Sudbury on March 9, 2015. This court is
    not an appeal court. The order setting aside registration was not appealed by
    the Director of Family Responsibility. As a result, the decision of the Ontario
    Court must stand. By virtue of section 21(1) of the ISO Act, 2002, S.O. 2002,
    c.13, when an order of a reciprocating jurisdiction has been set aside under
    section 20 of the Act, the order
shall
be treated as a support
    application under section 9 of the Act. This is what triggered the Director's
    motion for enforcement to be returned to this court. The enforcement procedures
    brought on behalf of the applicant by the Director of Family
    Responsibility/lSOA Unit had only been allowed to lapse because of the false
    information provided to this court respecting his permanent departure from
    Canada. This court was entitled to revisit the matter anew upon being requested
    by the Director to do so on information the Director had received presumably
    from the Finnish authorities. [Emphasis in original.]

[19]

The
    motion judge continued, specifically rejecting the argument that the setting
    aside of the registration in Ontario invalidated the Finnish Order:

I do not read section 21 of the ISOA as
      invalidating the order whose registration has been set aside. Rather, I
      interpret this section of the Act as creating a mechanism for avoiding the need
      to commence a new child support application
.
        Setting aside registration of a foreign child support order for reasons of
        alleged improper service on a party or because a party alleges that he has not
        been given a reasonable opportunity to respond to the application giving rise
        to the order should not mean that the order is thereby rendered invalid,
        particularly when there is no reliable proof that such allegations are true and
        where, as in this case, that order has been upheld by an appeal court in the
        jurisdiction where it was made. It seems all too easy for a person opposed to
        registration of a foreign child support order to throw up meritless obstacles
        to its enforcement as seems to have happened in the present case. The ability
        to set aside [registration of] a presumptively valid foreign support order
        (ISOA operates on this basis) on the uncorroborated evidence of a person whose
        financial interests are likely adversely affected by that order is, I believe,
        a weakness in the enforcement procedure established by ISOA. [Emphasis added.]

[20]

Finally, with respect to Bougrines argument
    that, in the absence of an existing Ontario court order, the matter should be
    returned to the Finnish courts where the original 2010 support order was made
    and is still operative, the motion judge said:

It is illogical to argue that the applicant should be made to
      bring enforcement proceedings in Finland where the order was first issued and
      subsequently never complied with. If the respondent finds the present matter
      before this court, it is because he has worked in Ontario for many years and is
      still working here. Proceedings related to the enforcement of a valid support
      order ought logically to take place where the income of a payor can be attached
      and not in a jurisdiction where his income and assets cannot be attached.

[21]

Following the hearing, the motion judge made a
    temporary support order in June 2019. Then in October 2019, he made a final
    order with two components: (1) payment of child support of $2,463 per
    month for the two children commencing in June 2019, based on Bougrines Child
    Support Guideline income of $181,558; and (2) payment of child support arrears
    fixed at $179,667.20 as of May 1, 2019, payable at $300 per month.

[22]

Pursuant to this Order, the FRO assisted with
    enforcement through a support deduction notice to Laurentian University,
    Bougrines employer, and collected support payments that were then sent to
    Finland.

(b)

Superior Court of Justice

[23]

Bougrine appealed the motion judges decision to
    the Superior Court of Justice. Relying heavily on a decision of this court,
Cheng
    v. Liu
, 2017 ONCA 104, the appeal judge allowed the
    appeal and quashed the motion judges decision for want of jurisdiction.

[24]

The core of the appeal judges reasoning is:

Section 21 of the
ISO Act
is, in my
      opinion, a curious provision in that the court
must treat the foreign
        order as if it were an application for support
. The learned judge did
      what the section mandates and proceeded to assess Mr. Bougrines total
      outstanding child support arrears as of May 1, 2019, to be $179,667.20. This
      was to be repaid at the rate of $300 per month. Based upon an imputed 2019
      gross annual income of $181,558, Mr. Bougrine was ordered to pay the sum of
      $2,463 Canadian for the support of the two children, such payments to commence
      on June 1, 2019.

In doing so, the court avoids addressing the
      issue that the result is that there are now two child support orders in
      existence, one in Finland and one in Canada. The court acknowledges that s. 21
      of the
ISO Act
does not invalidate the Finnish order and proceeds with
      the application saying in para. 24 because section 21 of the ISO has the
      effect of converting the original foreign order of 2010 into an application
      going forward. The Ontario proceedings, as the court correctly pointed out,
      have no bearing whatsoever on the existence and validity of the Finnish court
      order for child support. In my opinion, the existence of two valid court orders
      for support is quite problematic.

[25]

Following a reference to
Cheng v. Liu
, a case involving the relationship between the federal
Divorce
    Act
, R.S.C. 1985, c. 3 (2nd Supp.) and the
Ontario
Family Law Act
, R.S.O. 1990, c. F.3, the appeal judge
    continued:

In this case, both children were born in
      Finland and, with the exception of the period of time that they were abducted
      and taken to Morocco, have always lived in Finland with their mother. The
      parties were divorced by a Finnish court order. The Finnish court also made an
      order granting Ms. Krause custody of the children and awarding her child
      support. As previously set out, Mr. Bougrines appeal from this order was
      dismissed. According to
Cheng
, this means that the Finnish court has
      exclusive jurisdiction over child support because such court granted the
      divorce and issued an order for child support. According to
Pageau
[
Pageau v. Szabo
, [1986] O.J. No. 1675], a court acting under a provincial statute
        would be barred from dealing with the issue of child support in these
        circumstances.

On the facts of this case,
Cheng
would also preclude the situation that we have here, namely the existence of
      two valid child support orders. The
ISO Act
was created to establish a
      uniform method and system for the parties seeking to obtain, to challenge or to
      vary child support orders issued where the parties reside in different
      jurisdictions. The chaos created by competing child support orders is surely
      inconsistent with these objectives and can hardly be said to be part of a
      uniform system.

C.

issue

[26]

There is a single issue on the appeal: does an
    Ontario court have jurisdiction under s. 21 of the
ISO Act
to order child support in the face of a valid but unenforceable (in
    Ontario) foreign child support order?

D.

analysis

[27]

The
ISO Act
allows for the establishment, variation and enforcement of support orders where
    one party resides in Ontario and the other party resides in a reciprocating
    jurisdiction.
[1]
Support recipients can register domestic or foreign support orders in order to
    enforce them against residents of Ontario or those who have income or assets in
    the province. Support recipients can also apply to obtain or vary support
    orders in Ontario that can then be enforced against the resident of Ontario.

[28]

A principal purpose of the
ISO Act
is to facilitate the enforcement of the support obligations of
    persons resident in one jurisdiction whose dependants (spousal or child) are
    resident in another jurisdiction. Reciprocal support enforcement statutes are
    enacted because of historical difficulties encountered by parties seeking to
    obtain, vary or enforce a family support order when one party is no longer
    residing in the jurisdiction where the original order was made. The core scheme
    of the
ISO Act
is to establish a fair and
    workable system for providing support for children and spouses who have a
    parent or former partner living in a different jurisdiction.

[29]

As explained by Attorney General David Young
    when he introduced the proposed
ISO Act
in the
    Ontario Legislature in 2002:

The proposed bill is further proof that we are
      committed to ensuring that children and families who rely on support payments
      receive every cent of the amount they are entitled to. Failure to pay child
      support and spousal support is a social problem; there should be no doubt about
      that. It is a problem that should and does concern us all. Thousands of
      families rely on support payments to buy food and other basic necessities, including
      rent. Without those payments, some families may be forced to live in poverty.
      They may be forced to turn to food banks and, in some cases, social assistance.
      This simply shouldnt be happening. It is simply unacceptable. When children
      and families do not receive money, or do not receive money in a timely fashion,
      we all suffer.

Ontario Legislative Assembly,
      Official Report of Debates (Hansard), 37
th
Parl., 3rd Sess, No. 30
      (23 September 2002), at p. 1497.

[30]

Against this backdrop, I turn to consider s. 21
    of the
ISO Act
.

[31]

In statutory interpretation, the language of a
    statutory provision must be interpreted in light of the purpose of the
    provision and the entire relevant context:
Canada (Minister of
    Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, at
    para. 118.

[32]

In my view, the precise language of s. 21 of the
ISO Act
was triggered by Bougrines conduct in
    this case. He took steps to set aside the Ontario registration of the Finnish
    support order for his children. He did this under s. 20 of the
ISO
    Act
and he was successful; the Ontario registration was
    set aside, thus removing his obligation, enforceable in Ontario, to provide
    support to his children.

[33]

This result elicited a response from the
    appellant Interjurisdictional Support Orders Unit. When it became aware that the
    registration of a valid court support order of a reciprocal jurisdiction
    (Finland) had been set aside
and

that the
    non-paying father still lived and worked in Ontario, contrary to his submission
    to the Ontario court, it invoked s. 21 of the
ISO Act
in an attempt to remedy an egregious situation  dishonest
    obtaining of an Ontario court order and concomitant non-compliance with a valid
    Finnish court order.

[34]

In my view, the steps taken by the Unit were
    appropriate and the initial decision by Justice Guay granting the relief sought
    by the Unit was correct. Section 21 of the
ISO Act
specifically empowers an Ontario court to hear a new support
    application that takes into account the unenforceable foreign order as well as
    other information the court considers necessary and to make a new support
    order.

[35]

On appeal, the appeal judge disagreed with
    Justice Guays analysis and conclusion. Central to his reasoning was his view
    that the decision of this court in
Cheng v. Liu
, compelled a different answer. I have set out the key passages of
    the appeal judges discussion of
Cheng v. Liu
in the Facts portion of this judgment.

[36]

In my view,
Cheng v. Liu
does not support the respondents position or the appeal judges
    analysis. The issue in
Cheng v. Liu
was
    whether an Ontario court had jurisdiction to adjudicate a claim for corollary
    relief under the federal
Divorce Act
despite
    the fact that the parties divorce had been validly granted by a foreign court,
    without providing  for corollary relief. The division of powers between the
    federal and provincial governments was at issue in that case. That is, while
    the federal government has jurisdiction over marriage and divorce, the province
    governs matters of property. In this way, the power to award support under the
    federal
Divorce Act
is
limited to cases where
    the support is a corollary to the divorce. This court concluded that since the
    foreign divorce was silent on support, support could be awarded under the
    Ontario
Family Law Act.

[37]

Cheng v. Liu
recognizes
the jurisdiction of the province to legislate in
    matters of property. After considering, and rejecting, the jurisdiction of
    Ontario courts to grant corollary relief under the federal
Divorce
    Act
after a foreign court has validly issued a divorce
    decree, the court went on to consider whether an Ontario court had jurisdiction
    under a provincial law, the
Family Law Act
, to
    determine the issue of child support after a foreign court has issued a divorce
    decree without providing for child support. The court answered this question in
    the affirmative and said, at paras. 45 and 52:

There is also no statutory prohibition against utilizing
      the
FLA
in such circumstances. Indeed, the use of the
FLA
to
      provide a remedy is entirely consistent with the statutory objective of
      ensuring that parents provide support for their dependent children.

Ontario courts have authority to award child support under s.
      33 of the
FLA
. There is nothing in the legislation that restricts
      that authority in situations where a divorce order has been granted outside of
      Canada. The use of the
FLA
in circumstances where relief
      under the
Divorce Act
is unavailable does not engage the
      paramountcy doctrine, as there is no operational incompatibility between the
      federal and provincial statutes. To the contrary, the two statutes are
      operating harmoniously to ensure that a remedy for child support is available.

[38]

In
    this case, a different provincial statute, the
ISO Act
,

that is coincident in intent and purpose, explicitly
    provides for the exact remedy sought.  Absent a finding that the specific
    provisions relied on were unconstitutional, which would have required notice to
    the Attorney General,
it simply was not open to the appeal judge to
    quash the Order of the Ontario Court of Justice for want of jurisdiction.

[39]

I
    make a final observation. The appeal judge mentioned the potential for double
    recovery as a danger that might arise if the Ontario court had jurisdiction to
    make a support order in the face of an existing Finnish support order.

[40]

For
    two reasons, with respect, I do not think this is a compelling point.

[41]

First,
    the international support order regime is grounded in cooperation between knowledgeable
    governments and their agencies that administer the governing laws, treaties and
    intergovernmental agreements. Under the umbrella of international agreements
    between cooperating governments, there are government support systems and
    personnel dedicated to, and experienced in, providing high quality assistance
    to the enforcement of valid foreign orders, sharing information and avoiding
    duplication. In short, the potential for double recovery is a red herring.

[42]

Second,
    this case and the vast majority of similar cases point to the real problem. It
    is not potential double recovery; it is no recovery. The
ISO Act
, and
    the people who administer it, are an important provincial, national and
    international vehicle in the attempt to ameliorate this real problem.

E.

disposition

[43]

I
    would allow the appeal, set aside the Order of the Superior Court of Justice
    dated August 10, 2021, and restore the Order of the Ontario Court of Justice
    dated October 19, 2020.

[44]

I
    would award the appellant costs of the appeal fixed at $25,000, inclusive of
    disbursements and HST.

Released: February 24, 2022 J.C.M.

J.C. MacPherson
    J.A.

I agree. K. van
    Rensburg J.A.

I agree. L.B.
    Roberts J.A.

[1]

There are substantially similar statutes across Canadian
    provinces and territories that include a provision the same or similar to s. 21
    of the
ISO Act
.


COURT OF APPEAL FOR ONTARIO

CITATION: Johnson v. Ontario, 2022 ONCA 162

DATE: 20220222

DOCKET: M53210 (C69417)

Paciocco
    J.A. (Motion Judge)

Proceeding
    under

The
    Class Proceedings Act, 1992, S.O. 1992, Chapter 6

BETWEEN

Glen Johnson, Michael Smith, Timothy Hayne

Plaintiffs (Respondents)

and

Her Majesty the Queen in the Right of Ontario

Defendant (Respondent)

Mirilyn Sharp and Nancy Sarmento
    Barkhordari, for the appellant

Rita Bambers and Lisa Brost, for the
    respondent Her Majesty the Queen in right of Ontario

Chelsea Smith, for the respondents Glen
    Johnson, Michael Smith and Timothy Hayne

Andrew Eckart, for the proposed
    intervener The Class Action Clinic, University of Windsor, Faculty of Law

Heard: February 18, 2022 by video conference

Paciocco J.A.:

[1]

This motion for intervention as a friend of the
    court by The Class Action Clinic, University of Windsor, Faculty of Law (the
    Clinic) relates to an appeal by Donald Parker of an unsuccessful motion for
    extension of time to opt out of a class action. That class action has been
    certified on behalf of persons incarcerated at the Elgin Middlesex Detention
    Centre between January 1, 2010 and May 18, 2017, against Her Majesty the Queen
    in the Right of Ontario (Ontario), and alleges a failure to provide medical
    care for inmates.

[2]

After the opt-out date for the class action had
    passed, Mr. Parker filed a lawsuit against Ontario for delay in providing him
    with medical care while an inmate at the Elgin Middlesex Detention Centre,
    including during the period encompassed by the class action. In a letter
    accompanying its notice to defend, Ontario referred to the class action and suggested
    that Mr. Parker should discontinue his claim or limit it to the period outside
    of the class action. Mr. Parker has deposed that he was unaware of the class
    action when he instituted the action and upon learning about it, he brought a
    motion to extend the time to opt out of the class action. On April 16, 2021,
    the motion judge refused the motion and on May 10, 2021, ordered costs against
    Mr. Parker.

[3]

Mr. Parkers appeal of that decision is scheduled
    to be heard by this court on March 30, 2022 at 12:00 p.m. In this motion the
    Clinic seeks to intervene as a friend of the court in that appeal, on terms
    that permit the Clinic to file a factum not exceeding 20 pages in length, and to
    make oral argument at the hearing of the appeal of no more than 15 minutes. None
    of the parties oppose this motion but disagree relating to the timing of the
    delivery of responding facta, and the time for oral argument. Mr. Parkers
    consent is contingent on an intervention order not delaying the scheduled
    appeal. Ontarios consent is contingent on the Clinics intervention being
    without prejudice to Ontarios argument that if the adequacy of notice is recognized
    to be a factor to be considered in applications for extension of time to opt-out,
    that factor should not be applied during Mr. Parkers appeal because the
    adequacy of notice was not an issue before the motion judge, and is not an
    issue properly raised on appeal. Mr. Parker disputes Ontarios position, but
    does not take issue with a neutral recital being made in the intervention order
    alerting the panel to the fact that this is an open issue. Ontario also seeks a
    condition prohibiting the Clinic from presenting additional evidence, although
    the Clinic has disclaimed any intention to do so.

[4]

I would grant the Clinics motion to intervene,
    on terms provided below. I am persuaded in the circumstances that the Clinic
    will be able to make a useful contribution to the resolution of the appeal
    without causing injustice to the immediate parties:
Peel (Regional
    Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd.
, (1990),
    74 O.R. (2d) 164 (C.A.), at p. 167;
Foster v. West
, 2021 ONCA 263,
    55 R.F.L. (8th) 270, at para. 10. I make the following findings in that regard.

[5]

First, the nature of the case and the issues
    that arise support this outcome. The legal considerations relevant in
    determining whether a class member can secure an extension of time to opt out
    of a class action are not settled and arise in this appeal. The Clinic proposes
    to offer a framework, derived from a principled analysis of the role of courts
    as guardians of related rules, that will focus on the factors that a judge
    should consider when adjudicating a class members motion for an extended
    opt-out. The Clinic will argue that those factors will enable a balanced
    assessment of the rights of class members against the objective of class
    actions. These issues transcend the interests of the parties in this public
    dispute and the proposed submissions do not simply repeat submissions that will
    be made by the parties.

[6]

Second, the Clinic has the experience and
    expertise to provide useful submissions. It is a non-profit legal service that,
    under the direction of a legal scholar with recognized expertise in class
    actions and with the contribution of University of Windsor law students, provides
    public legal education, assistance in serving the rights and needs of class
    members, and policy analysis and empirical research on various class action
    issues.

[7]

Third, granting the intervention will not cause
    injustice to the parties. The parties received advance notice of the Clinics
    intention to seek intervention and have been provided with a draft factum
    reflecting the essence of the submissions the Clinic proposes to make. As
    indicated, none of the parties oppose the intervention. Nor will granting this
    motion delay the impending appeal. The Clinic has undertaken that if granted
    leave, they will abide by any timelines imposed or ordered by the court. The
    intervention will not prejudice Ontarios right to make the argument it chooses
    relating to adequacy of notice, and the Clinic will not be at liberty to apply
    for the admission of additional evidence.

[8]

In order to facilitate its intervention, the
    Clinic seeks leave to file a 20-page factum, to be served electronically, and
    15 minutes for oral submissions at the hearing. The Clinic provided a draft
    factum, reserving the right to make further editorial, non-substantive changes.
    The draft factum is 15 pages, apart from the cover sheets, style of cause, and
    schedules. It is a concise and clear document that does not appear to require
    supplementation. The factum will be limited to 15 pages. Given the quality
    of the factum, I am also satisfied that oral submissions can be made
    expeditiously and efficiently on behalf of the Clinic at the hearing, in 10
    minutes.

[9]

The parties to the appeal do not agree on the
    terms that should accompany the intervention order. Ontario and Mr. Parker have
    requested leave to file factums in response to the Clinics factum. All parties
    should each be entitled to file a 10-page responding factum. Mr. Parker wishes
    to file his factum one week after the delivery of Ontarios responding factum.
    Ontario wants Mr. Parker to file his responding factum the same date that
    Ontario does. I agree with Ontario. I see no basis for granting Mr. Parker what
    would, in effect, be a reply factum.

[10]

Mr. Parker seeks an additional 10 minutes of
    oral argument to respond to arguments made by the intervenor. Ontario seeks the
    same 10 minutes, as well as an additional 15 minutes of oral argument, on top
    of the 45 minutes it has already been allocated. In support of its request for
    an additional 15 minutes Ontario argues that its time allocation was set before
    its time estimate was provided, and it requires additional time to address affidavit
    evidence that Mr. Parker intends to present to the appeal panel. I am not
    persuaded that this additional 15 minutes is required to enable Ontario to make
    its oral submissions and, given the scheduling of this appeal, it will
    inconvenience the court.

[11]

I therefore grant the Clinics motion to
    intervene on the following terms:

1.

The Clinics intervention is without prejudice to
    Ontarios right to argue that the adequacy of the notice of the class action is
    not appropriate for consideration in determining Mr. Parkers appeal.

2.

The Clinic shall not bring a motion for the admission
    of additional evidence or otherwise seek to augment the record.

3.

The Clinic shall file a factum not exceeding 15
    pages in length.

4.

The Clinics factum shall consist of an edited
    version of the draft factum filed in the context of this motion and will not
    expand on the issues to be addressed by the clinic or alter materially the
    arguments presented in the draft.

5.

The Clinics factum is to be served and filed no
    later than February 25, 2022 and may be served electronically.

6.

Mr Parker, and Ontario may file a factum not
    exceeding 10 pages in length in response to the Clinics factum. Each factum is
    to be served and filed no later than March 16, 2022.

7.

The Clinic is permitted to make oral arguments at the hearing of
    this appeal of no more than 10 minutes.

8.

Mr. Parker and Ontario are each granted 10 additional
    minutes for oral argument.

9.

The Clinic will consent to service of all materially electronically.

10.

The Clinic shall not seek costs in the intervention, nor will costs
    be awarded against it.

Released: February 22, 2022 D.M.P.

David M. Paciocco J.A.


WARNING

The President of the Panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue. These sections of the
Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)      In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss.
    22,48; 2015, c. 13, s. 18.

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    C.T., 2022 ONCA 163

DATE: 20220225

DOCKET: C67631

Miller, Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.T.

Appellant

C.T., acting in person

Andrew Furgiuele, appearing as duty counsel

Jeffrey Wyngaarden, for the respondent

Heard: February 7, 2022 by video conference

On appeal from the convictions entered on April 21, 2017
    and the sentence imposed on October 30, 2019 by Justice Sean F. Dunphy of the Superior
    Court of Justice.

REASONS FOR DECISION

[1]

It is an error of law for a trial judge to discount the
    credibility of an accuseds evidence on the basis that it was tailored to fit
    Crown disclosure, or evidence or argument heard in court prior to the accused
    testifying. Drawing the inference that advance notice of the case against the
    accused has allowed the tailoring of evidence and thus made it suspect, though
    a natural temptation, is impermissible. It would create a constitutional trap,
    turning the right to be present at trial under s. 650(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46
    and the rights to full answer and defence under ss. 7 and 11(d) of the
Canadian
    Charter of Rights and Freedoms
against
    the accused
:
R. v. White
(1999), 132 C.C.C. (3d) (Ont. C.A.), at para. 20;
R.
    v. Schell
(2000), 148 C.C.C. (3d) 219 (Ont. C.A.);
R.
    v. Thain
, 2009 ONCA 223, 243 C.C.C. (3d) 230;
R. v. Jorgge
, 2013 ONCA
    485, 4 C.R. (7th) 170, at para. 12;
R. v. M.D.
,
    2020 ONCA 290,392 C.C.C. (3d) 29;
R.
    v. G.V
., 2020 ONCA 291, 392 C.C.C.
    (3d) 14;
R. v. B.L.
, 2021 ONCA 373, at paras. 44-47.
[2]

The trial judge committed exactly that error in this case.
[3]

The trial judge convicted the appellant of one count of sexual assault
    under s. 271 of the
Code
relating to events in December of 2013. He
    convicted the appellant of a second count of sexual assault and one count of
    assault under s. 266 relating to events in March of 2014. Finally, he convicted
    the appellant of one count of criminal harassment under s. 264(1) relating to
    events in April of 2014.
[4]

The complainant on each of the charges was J.S., with whom the appellant
    had been in a romantic and sexually intimate relationship.
[5]

J.S. and her mother were the only Crown witnesses. The appellant
    testified in his own defence. The trial judge noted, at the outset of his
    reasons: There were stark contrasts between the evidence of these events
    related by the two Crown witnesses and the accused. Accordingly, credibility
    required very careful examination. He also observed that the appellants
    evidence was exculpatory and accepting it, or finding it raised a reasonable
    doubt, would require acquittal on all charges.
[6]

The trial judges analysis of the credibility of the appellants
    evidence, his rejection of it and his finding it raised no reasonable doubt, leaned
    heavily and repeatedly on the trial judges inference that his evidence had
    been tailored to fit disclosure or prior evidence.
[7]

In the introductory portion of his reasons, the trial judge stated:
I found the evidence of the accused was fundamentally
    unreliable and tainted by fantasy, insincerity or both in many instances. Insincerity,
    once detected, becomes like the thirteenth chime of a clock. It cast doubt upon
    the twelve that preceded it. There were aspects of his evidence that I did
    accept but only if adequately corroborated by other sources.
On the whole, I concluded that he told the truth only where it
    suited his purpose while the remainder of his evidence was carefully tailored
    to fit, however awkwardly, the evidence of which he was aware
. [Emphasis
    added.]
[8]

In the section of his reasons entitled General Comments on
    Credibility, the trial judge returned to the same impermissible reasoning. He
    stated:
While smoothly recounted and never lacking in complete
    confidence as to the smallest of details recalled in the most vivid terms three
    years after the fact, the tale that [the appellant] spun became increasingly
    implausible as layer upon layer of detail was added.
At
    length, I reached the conclusion that [the appellant] could not be relied upon
    to tell the truth at all. He appeared to be looking to fit his evidence to the
    disclosure he had received rather than to be recalling things from his own
    lived experience
. [Emphasis added.]
[9]

In addition to these general comments, applicable to the credibility assessment
    in relation to all of the charges, the trial judge used this reasoning when
    dealing with specific events. In rejecting the appellants version of what
    occurred in relation to the December 2013 offences, the trial judge stated:
This was one instance and not the only one where I formed the
    view that [the appellant] sought to tailor his evidence to suit

    (emphasis added). When dealing with the offences in March 2014, the trial judge
    took the same approach:
Once again I found [the appellants]
    version of these events to be a product of fantasy or a deliberate fabrication
    to fit disclosed evidence. I am unable to afford any credence at all
 (emphasis
    added).
[10]

The Crown argues that the trial judges error was harmless, as his reasons
    make it clear that he had numerous grounds for rejecting the credibility of the
    appellants evidence. The comments about the appellant tailoring his evidence should,
    in the Crowns submission, be viewed as a mere afterthought and the curative proviso
    in s. 686(1)(b)(iii) of the
Code
should be applied.
[11]

We are not persuaded by this argument. The trial judge made his
    inference of tailoring to fit disclosure a feature of his credibility
    assessment at the outset of his reasons. He returned to it as an important
    consideration in his general findings on credibility, and then repeated its
    importance in his more granular analysis of important events. The proviso will
    not be applied where the impermissible tailoring inference appears to have
    played a large role in the trial judges rejection of the appellants version
    of what occurred, even if there were other reasons for that rejection:
B.L.
,
at para. 50.
[12]

[13]

Jorgge
,
The context for these three cases [
White
,
Schell
and
Thain
] differs from the case before us, but the underlying
    principle is the same. In those other cases, either the Crown or the trial
    judge improperly used an accuseds right to disclosure to discredit the
    accuseds testimony. In the present case, the trial judge improperly used the
    appellants right to be present at his trial to discredit his testimony. She
    erred in doing so.
This error figured prominently in the trial judges adverse
    assessment of the appellants credibility. Credibility was the significant
    issue at trial, in the light of the differing versions of events given by the
    appellant and the complainant. In
Thain
, at para. 38, Sharpe J.A. said
    [t]he appellant was entitled to have his credibility fairly assessed without
    being trapped by the exercise of his constitutional rights. Similarly, Mr.
    Jorgge was entitled to have his credibility fairly assessed without being
    trapped by the exercise of his statutory right to be present at his trial. Thus,
    his convictions cannot stand.
[14]

The same approach is required here. The appeal is allowed, and a new trial
    is ordered. Accordingly, we do not reach the sentence appeal.
B.W. Miller J.A.
Gary Trotter J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lamba v. Mitchell , 2022 ONCA 164

DATE: 20220223

DOCKET: M53161

Thorburn J.A. (Motions
    Judge)

BETWEEN

Amarjot Lamba and Chand
    Lamba

Moving Parties

and

Michael Mitchell and
    Richard Bowring

Responding Parties

James R. D. Clark, for the appellants

Monica Unger Peters, for the respondents

Heard: in writing

ENDORSEMENT

Relief Sought

[1]

The moving party, Amarjot Lamba, is a real estate agent; the moving
    party, Chand Lamba, is his spouse. They seek an order to extend the time to
    seek leave to appeal by additional ten days.

The Dispute Between the Parties

[2]

The moving parties put an offer on a house and entered into an agreement
    of purchase and sale but failed to close the transaction. They sought an
    extension of the closing date.

[3]

The responding parties refused to extend the closing and instead,
    delivered their closing documents.

[4]

Following the aborted closing, the moving parties commenced an action
    claiming specific performance with an abatement and moved unsuccessfully for a
    certificate of pending litigation.

[5]

The responding parties counterclaimed for damages and an order that the
    purchasers deposit be forfeited. The responding parties re-sold the home and
    moved for summary judgment, requesting forfeiture of the moving parties
    deposit.

[6]

The moving parties argued that they were entitled to rescission of the
    agreement of purchase and sale and damages, because of the misrepresentation
    with respect to the square footage of the home and because the responding
    parties had not satisfied them that the renovation had been completed in
    accordance with the applicable building permit.

The Decision on the Responding Parties Motion for Summary
    Judgment

[7]

On May 18, 2021, the motion judge granted the responding parties motion
    for summary judgment and declared the moving parties $20,000 deposit forfeited
    to the responding parties.

[8]

The motion judge acknowledged that the Multiple Listing Service (MLS)
    listing for the home misstated the main floor area of the home to be 2,500
    3,000 sq. ft., when in fact the main floor area was 2,155 sq. ft. However, he
    found that the moving parties had personally attended the property to view the
    house and were well-aware of its actual size and layout before they decided to
    buy what they had seen. Further, he found that Mr. Lamba could access
    materials with the correct area as he had access to a brochure and floor plan
    with the homes correct area which accompanied the MLS listing for the
    property.

[9]

As such, the motion judge concluded that the discrepancy between the
    actual and misstated area in the MLS listing did not constitute a material
    misrepresentation that would have affected the moving parties decision to make
    an offer, and did not entitle the moving parties to rescind the agreement. He
    also held that the moving parties did not requisition a valid objection to
    title in respect of their concern with a building permit, and were not entitled
    to rescind the agreement on that basis. Finally, he held that the $20,000
    deposit was not disproportionate to the purchase price, and it would not be
    unconscionable for the responding parties to keep the deposit given that the
    moving parties breached the agreement.

[10]

The motion judge ordered that the moving parties $20,000 deposit be
    forfeited to the responding parties and he ordered costs against the moving
    parties in the amount of $10,856.48 inclusive of HST and disbursements, bearing
    interest of 2 percent per annum commencing April 1, 2021.

The Decision of the Divisional Court on Appeal

[11]

The moving parties appealed to the Divisional Court on the issue of
    rescission for misrepresentation. On December 7, 2021, the Divisional Court
    dismissed their appeal. The Divisional Court held that,

The purchasers accept that the motion judge correctly set out
    the legal test with respect to rescission for misrepresentation. However, they
    take issue with the findings of fact, and application of the law to the facts,
    on the issue of reliance on the misrepresentation, as an inducement to
    purchase.

[T]he issue on this appeal is whether the purchasers  relied
    upon the square footage set out in the MLS listing, as they argue; or whether,
    as found by the motion judge, they relied upon the area and size of the home
    gleaned from their inspection. The latter was an inference of fact.

[T]he purchasers, through their solicitor, repeatedly affirmed
    their intention to complete the transaction, notwithstanding their discovery of
    the actual square footage of the home. While they evidently felt entitled to
    some compensation for the deficiency, the fact that they were intent on
    completing the purchase suggests that they based their decision to purchase on
    their satisfaction with the area and layout of the home, as observed during their
    inspection, and not on the representation of square footage contained in the
    listing agreement.

[12]

The Divisional Court further held that,

The purchasers were aware of the actual square footage of the
    home at the time the affidavit was sworn. If their satisfaction with the area
    of the home at the time of purchase was based upon the represented square
    footage rather than the area and size of the home gleaned from their
    inspection, it is a reasonable inference that they would not have tried to prevent
    the home from being sold to others, and that Mr. Lamba would not have sworn
    that the property was unique and exactly what we were looking for [in his
    affidavit sworn in support of the motion for a certificate of pending
    litigation]

[13]

The Divisional Court concluded that the findings of the motion judge
    were reasonable and available to him on the evidence.

[14]

The Divisional Court dismissed the appeal and ordered costs against the moving
    parties in the amount of $8,000.

[15]

The Notice of Motion for Leave to Appeal must be filed within 15 days of
    the decision of the Divisional Court on December 7, 2021. In light of the
    holiday period, the deadline for submitting a notice for leave to appeal was
    December 30, 2021. The moving parties failed to meet that deadline despite
    being represented by counsel. The moving parties claim that they intended to
    appeal within the requisite period and thought they had more time than they
    did. They claim they contacted three or four law offices before meeting their
    current counsel via Zoom on January 7, 2022 and signing a retainer agreement on
    January 11, 2022.

[16]

The moving parties seek an order to extend the time to seek leave to
    appeal the Divisional Court decision.

The Test for Leave to Appeal

[17]

An appeal lies to this court, with leave, from an order of the
    Divisional Court:
Courts of Justice Act
, R.S.O., c. C.43, s. 6(1)(a).
    A notice of motion for leave to appeal must be served within 15 days after the
    making of the order from which leave to appeal is sought:
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194, r. 61.03.1(3).

[18]

Pursuant to r. 3.02(1) of the
Rules of Civil Procedure
,
this
    court may extend the time to seek leave to appeal on such terms as are just. The
    overarching principle is whether the justice of the case requires that an extension
    be given:
Enbridge Gas Distribution Inc. v. Froese
,
2013 ONCA
    131, 114 O.R. (3d) 636, at para. 15. The court must take into account (i)
    whether the moving party formed an intention to appeal within the relevant
    period, (ii) the length of, and explanation for, the delay, (iii) any prejudice
    to the responding party, and (iv) the merits of the proposed appeal:
Enbridge
,
at para. 15
; Reid v. College of Chiropractors of Ontario
,
2016
    ONCA 779, at para. 14; and
Krawczynski v. Ralph Culp and Associates Inc.
,
    2019 ONCA 399, 69 C.B.R. (6th) 163, at para 9.

[19]

The proposed appeal arises out of a decision of the Divisional Court
    exercising its appellate jurisdiction. I am mindful that appellate decisions of
    the Divisional Court are intended to be final:
Sault Dock Co. v. Sault Ste.
Marie (City)

(1973)
,
34 D.L.R. (3d) 327 (Ont. C.A.), at p. 328.
A
    further appeal to this court is exceptional:
Enbridge
,
at para.
    19.

Analysis and Conclusion

[20]

Before granting leave, this court must be satisfied that the proposed
    appeal presents an arguable question of law, or mixed fact and law, requiring
    consideration of matters such as the interpretation of legislation; the
    interpretation, clarification or propounding of some general rule or principle
    of law; or the interpretation of an agreement or by-law where the point in
    issue involves a question of public importance. This court will also grant
    leave when the interests of justice require it, for matters of public
    importance, and to correct clear errors in a judgment below:
Sault Dock Co.
,
at p. 329;
Enbridge
,
at paras. 20-22.

[21]

The only issue on appeal to the Divisional Court was whether the
    purchasers relied on the square footage in the MLS listing or whether, as the
    motion judge found, they relied on the square footage gleaned from their
    inspection. That, as noted by the Divisional Court was an inference of fact. As
    noted by the Divisional Court,

The purchasers accept that the motion judge correctly set out
    the legal test with respect to rescission for misrepresentation. However, they
    take issue with the findings of fact, and application of the law to the facts,
    on the issue of reliance on the misrepresentation, as an inducement to
    purchase.

[22]

Given that the moving parties reaffirmed their intention to complete the
    transaction
after
discovering the actual square footage, the
    Divisional Court found no error in the motion judges finding of fact that this
    was demonstrative of their decision to purchase knowing the actual square
    footage. Instead, the Divisional Court concluded that the findings of the
    motion judge were reasonable and available to him on the evidence.

[23]

Like the motion judge, the Divisional Court concluded that,

The purchasers were aware of the actual square footage of the
    home at the time the affidavit was sworn. If their satisfaction with the area
    of the home at the time of purchase was based upon the represented square
    footage rather than the area and size of the home gleaned from their
    inspection, it is a reasonable inference that they would not have tried to
    prevent the home from being sold to others, and that Mr. Lamba would not have
    sworn that the property was unique and exactly what we were looking for [in
    his affidavit sworn in support of the motion for a certificate of pending
    litigation]

[24]

The moving parties concede that the Divisional Court did not make an
    error of law. There was no apparent palpable and overriding factual error, and
    there was no error of law given the other factual findings. There is no
    reasonable possibility of success on appeal:
Ravelston Corp. (Re)
(2005),
    24 C.B.R. (5th) 256, (Ont. C.A.) at paras. 29-31. Moreover, there is no issue
    of public importance.

[25]

A lack of merit alone is sufficient to dispose of a motion for an
    extension:
Enbridge
, at para. 16. For the above reasons, I conclude
    that the proposed appeal is highly unlikely to be granted if I allow an
    extension of time to file the leave application.

[26]

However, some other relevant considerations outlined in
Enbridge
also militate in favour of dismissing the motion. I find that the moving parties
    did not form an intention to appeal within the relevant period. The moving
    parties were represented by counsel throughout the fifteen day period to seek
    leave to appeal. While the moving parties counsel communicated with the
    responding party during the fifteen-day period, counsel did not communicate any
    intention to seek leave to appeal. The moving parties acknowledge that they did
    not do so but claim they intended to appeal within the requisite period and
    thought they had more time than they did.

[27]

I note that the moving parties have also failed to comply with two cost
    orders, without explanation: the costs ordered by the motion judge in the
    amount of $10,856.48 and the costs ordered by the Divisional Court in the
    amount of $8,000. There is no suggestion they are unable to pay. The responding
    parties note that they extended an offer to the moving parties to enable them
    to extend the time if the cost orders are paid, which offer was rejected by the
    moving parties. The moving parties failure to abide by two court orders
    without explanation is a consideration relevant to the justice of this case.

[28]

For these reasons, the request to extend the time to seek leave
    to appeal is denied.

J.A. Thorburn J.A.