PAYNELAW

Trial and Appeal Experience For the Wrongfully Dismissed

MEET OUR TEAM

Case Name:
Maksymiak v. Breakwater Resources Ltd.

Between
Jozef Maksymiak, appellant, and
Breakwater Resources Ltd., respondent

[2004] O.J. No. 2382
Divisional Court No. 678/02

Ontario Superior Court of Justice
Divisional Court
Swinton J.

Judgment: April 13, 2004.
(4 paras.)

Counsel:

Yan David Payne for the Appellant.

Brady, for the Respondent.

________________________________________________________________________

¶ 1      SWINTON J. (endorsement):— The appellant seeks to set aside the order of the Registrar dated Dec. 22/03 dismissing his appeal for delay. In determining whether leave to extend time to appeal should be granted, the court considers whether the appellant has maintained a firm intention to appeal from the beginning, whether the failure to observe the time limits is reasonably explained, and whether the justice of the case requires an extension (Frey v. MacDonald (1989), 33 C.P.C. (2d) 13 (CA) at 14). Among factors considered are the length of the delay and prejudice to the other party, as well as the merits of the appeal (Miller Manufacturing & Development Co. v. Alden, [1979] O.J. No. 3109 (CA), para. 5-6).

¶ 2      Here, the affidavit of the appellant establishes that he had an ongoing intention to appeal. He has also given a reasonable explanation for the delay - namely, his reliance on Mr. Obidinski, the paralegal, to file material on his behalf, given his remote location, and Mr. Obidinski's failure to act properly.

¶ 3      The delay has not been lengthy in bringing this motion, and there is no evidence of prejudice to the respondent. The respondent argues that there is no arguable point of law to be argued on appeal, while the appellant argues that there is an arguable issue of law with respect to the employer's obligation to compensate for sick leave benefits, given its participation in the Employment Insurance Premium Reduction Program. Despite the able argument of Mr. Brady, I do not feel it appropriate to discuss the motion. The merits of the appeal require a fuller hearing.

¶ 4      Having considered all the factors, I conclude that the motion should be granted. The order of the Registrar is set aside, and the appellant shall have 30 days to perfect the appeal. No costs awarded.

SWINTON J.

QL UPDATE:  20040621

PAYNE LAW PROFESSIONAL CORPORATION

Ontario Federation of Labour Building

6th Floor - 15 Gervais Dr.
 Toronto, Ontario 
M3C 1Y8

 tel: (416) 447-4529
fax: (416) 447-7529

info@paynelaw.ca

Click Map