1.6 What if you’ve missed a deadline and are too late to appeal?

If you’ve missed the deadline for filing your notice of appeal

You may apply for an extension of time if you have missed the 30-day deadline for filing your notice of appeal. Take the following steps:

  1. File a notice of motion in the registry (Form 6) with an affidavit that supports your motion (explaining why you missed the deadline). You must also file a notice of appeal (Form 7).
  2. File at least 4 copies of the notice of motion and affidavit – 2 for use by the court, one copy for your own use, plus one copy for each respondent.
  3. Pay your court filing fee when you file your notice of motion.
  4. Serve a copy of the filed notice of motion and other materials on each respondent at least 5 business days before the date set for hearing the application.
  5. Within 10 days from service on the other parties, file an affidavit of service in the Court of Appeal registry as proof that you served the application appeal on every respondent. Alternatively, you can file an acknowledgement of receipt of the document by the other party.

Your application will be heard by a single judge in chambers. The respondent may appear at the hearing and argue that you should not be given an extension of time.

The judge will normally consider these factors when deciding whether to grant your application for an extension of time:

  1. Was there a bona fide (genuine) intention to appeal?
  2. When were the respondents informed of your intention to appeal?
  3. Would the respondents be overly prejudiced by an extension of time?
  4. Does your appeal have merit?
  5. Is it in the interest of justice that an extension be granted?

If you’ve missed the deadline for filing your application for leave to appeal

You may apply for an extension of time if you have missed the 30-day deadline for filing your application for leave to appeal. Take the following steps:

  1. File a notice of motion in the registry (Form 6) with an affidavit that supports your motion (explaining why you missed the deadline). You must also file an application for leave to appeal (Form 1).
  2. File at least 4 copies of the notice of motion and affidavit – 2 for use by the court, one copy for your own use, plus one copy for each respondent.
  3. Pay your court filing fee when you file your notice of motion.
  4. Serve a copy of the filed notice of motion and other materials on each respondent at least 5 business days before the date set for hearing the application.
  5. Within 10 days from service on the other parties, file an affidavit of service in the Court of Appeal registry as proof that you served the application appeal on every respondent. Alternatively, you can file an acknowledgement of receipt of the document by the other party.

Your application will be heard by a single judge in chambers. The respondent may appear at the hearing and argue that you should not be given an extension of time.

The judge will normally consider these factors when deciding whether to grant your application for an extension of time:

  1. Was there a bona fide (genuine) intention to appeal?
  2. When were the respondents informed of your intention to appeal?
  3. Would the respondents be overly prejudiced by an extension of time?
  4. Does your appeal have merit?
  5. Is it in the interests of justice for an extension to be granted?

The respondent has 10 days to file and serve you with a notice of appearance if he or she intends to argue against the appeal you are making. If the respondent does not file a notice of appearance, he or she is presumed to take no position on the appeal, and you do not have to serve any further appeal documents on the respondent. (See Rules 13 and 14.)