An overview of “Motion to extend time to file an appeal” under the

Provincial Offences Act.

By: Vartan HS Manoukian, a Paralegal Practitioner Candidate with the firm of Solid Line
Traffic Defence.

Appeals play an integral role in the administration of justice. This is especially so in the
case of criminal trials and quasi-criminal or “regulatory offences” proceedings.1 As
Justice Doherty recently explained, appeals "protect against wrongful convictions and
enhance the fairness of the process".2

In the context of proceedings under the Provincial Offences Act (“POA”),3 a convicted
person has a statutory right of appeal to the Provincial Offences Appeal Court presided
over by a single judge of the Ontario Court of Justice. The requirement to file a notice of
appeal is within 15 days4 (Part I) and 30 days5 (Part III) of the POA respectively. After
the expiration of the statutory time prescribed for bringing an appeal a defendant can
make a motion to a judge who may extend or abridge the time for bringing an appeal.6

The criteria that an applicant must demonstrate to obtain the extension are that, he
must (a) show that he had a bona fide intention to appeal within the appeal period, (b)
account for or explain the delay in bringing his motion to extend the time; and (c) show
that his proposed appeal has merit.7 Depending on the case, the court may take into
consideration other factors such as whether the consequences of the conviction are out
of all proportion to the penalty imposed, whether the Crown will be prejudiced and
whether the applicant has taken the benefit of the judgment. In the end the main

1
R v. Ovided, 91 O.R. (3d) 593, 2008 CarswellOnt 4181
2
R v. R. (R.), [2008] O.J. No. 2468, (C.A.), at para. 16, 2008 CarswellOnt 3699
3
Provincial Offences Act, R.S.O. 1990. c. P.33 as amended
4
s.135(2) of the POA
5
s.113(1) of the POA
6
s.8(1) O. Reg. 722/94 Part I Appeals, s.7(1) O. Reg. 723/94, Part III appeals.
7
R v. Menear (2002), 162 C.C.C. (3d) 233 at para. 20 (Ont. C.A.), 21002 CarswellOnt 130
 2

consideration is whether the applicant has demonstrated that justice requires that the
extension of time be granted.8

Under the POA there are no specific provisions for “motion to extend time to file an
appeal” as there are in case of appeals. However section 8 of O. Reg. 722/94 provides
that a judge may extend or abridge the time for bringing an appeal and for doing any
other act in connection with an appeal for which a time is prescribed, before or after the
expiration of the time prescribed. In some jurisdictions a review of a motion to extend
time to file an appeal is done administratively whereas in others the applicant or his
representative appears in court. Furthermore, there is no rule that restricts the number
of times that such motions can be brought when a motion to extend time to file an
appeal has been dismissed as abandoned previously. This very issue was considered
by Duncan J. in R v Khan.9 Drawing a parallel from jurisprudence dealing with re-
opening appeals dismissed as abandoned.10 Duncan J. was of the view that the same
considerations should apply when considering a motion to extend time to file an appeal
where a prior motion has been dismissed other than on its merits. In all cases an
applicant has the burden to provide a reasonable explanation for the non-attendance.
However the Court of Appeal has on occasion allowed an extension of time even where
the delay is unexplained to prevent “injustice from occurring”. 11 An example would be:
where there are unexpected consequences of the conviction and there is good reason
to doubt the validity of the conviction.

A review for a motion to extend time to file an appeal represents a considerable

percentage of the work load on any typical day in the POA Appeal Court. In most cases
litigants are unrepresented which poses specific challenges of its own. They often
present applications and supporting documents that do not address adequately the
Menear criteria. The next issue on an application is one of how is the applicant's
burden is to be discharged and what kind of material is required? There is a difference

8
ibid, at para. 21
9
R v. Khan, [2005] O.J. No. 2658 (C.A.), R v. Jacobs, 1970 CarswellQue 47
10
R v. Watkins, 1999 CarswellOnt 1903
11
R v. Closs (1998), 105 O.A.C. 392 (C.A.)
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between explaining the delay and showing that there is arguable merit in the proposed
appeal. On the question of delay, the facts on which the applicant relies will be
peculiarly within his knowledge and that of his legal representative. In the absence of
agreement, he must prove such facts by evidence. On the other hand, the merits of the
proposed appeal can best be decided by reference to the record of proceedings in the
Court from which the appeal is brought. Evidence explaining the delay will usually be
given by affidavit. Subject only to the judge's overriding discretion, the affidavit must
comply with the requirements of the Rules, although compliance does not preclude the
use of statements based on information and belief.

On the issue of “proposed merit to the appeal,” it is important to note that the standard
to be applied is not whether the appeal has a reasonable prospect of success but rather
that there is an arguable ground of appeal of the judgment being appealed from.12
Although the record of proceedings in the court below is the best means of providing the
judge with the factual information which he needs to decide whether the proposed
appeal has arguable merit, rarely will a complete record be available when the
application for an extension of time is heard. The delay in waiting for a transcript of the
evidence13 and the cost of obtaining it are factors which militate against it being a rule
that the transcript be included in the material submitted to the judge. It is common
practice, for a legal representative who has the burden of satisfying the judge that his
client's proposed appeal has merit to file an affidavit. Where possible his client, or
someone who was present at the trial should deposes in a summarized form, to the
facts which were proved in evidence at the trial. In this regard it is important to note that
the paralegal who appears as an advocate shall not submit his or her own affidavit to
the tribunal.14

Reasons most often cited in an application to extend time to file an appeal include
inadequate retainer, searching for a legal representative, having become aware of the
conviction after the statutory time period to file an appeal has expired and late notice of

12
R v. Antoine (1972), 6 C.C.C. (2d) 162
13
R v. Ovided, supra
14
Rule 4.04(1) of the Rules of Professional Conduct, law Society of Upper Canada.
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the imposition of demerit points. While transcripts are not required in a motion to extend
time to file an appeal it is good practice to order them on sentence appeal.

In R v. Pomehichuk15, supra, Renaud J. considered the requirement to notify the

respondent notice of the proposed application to extend time to file an appeal under
Part I of the POA. Renaud J. referenced section 8(2) of O. Reg 722/94 and was of the
view that a court could grant the extension or abridgment of time even where a notice
of motion had not been served on the respondent. Perhaps an appellant is only
slightly out of time. Perhaps the stated grounds of appeal are so obviously meritorious
that the court can readily anticipate that the respondent would not object, for instance,
the absence of an appellant at trial and failure to meet time limits due to
hospitalization or absence from his place of residence. Furthermore on the subject of
proceeding without notice Renaud J. had this to say (at para. 17):The general
principle expressed in the regulations governing these appeals is that the rules shall
be construed liberally to obtain as expeditious a conclusion of every proceeding as is
consistent with a just determination of the proceeding.16

As restated by Renaud J. recently, “…Trials and appeals are important but at the same
time, parties who seek to contest a result at trial ought to not simply presume that
latitude will easily be granted to permit the pursuit of an appeal unless there is some
basis for excusing the non-compliance with procedures and time limits.17 In considering
a motion to extend time to file an appeal strict adherence to the three prong test in
Menear, supra, frequently yields to the court allowing an application by considering the
“interests of justice” component18, given the function and purpose of the POA.

15
R v. Pomehichuk, 2009 CarswellOnt 2756
16
s. 1(4), O. Reg. 722/94
17
R v. Pomehichuk, supra, at para. 22
18
R v. Stirling, [2005] O.J. No. 5341