A self-represented plaintiff’s claim is dismissed for delay on a defendant’s motion. She unsuccessfully brings a motion to the Superior Court to set aside that dismissal. Not filing a notice of appeal on time, she retains counsel to seek leave for an extension of time to file a notice of appeal. Sitting in chambers, a single judge of the Court of Appeal dismisses the motion. Self-represented once more, she brings another motion to a three-judge panel of the Court of Appeal to set aside the chambers judge’s decision.

This was the basis for Kirby v. Hope Place Centres – a brief decision released on July 4, 2013, which highlighted not only the test for granting an extension of time to file a notice of appeal, but also judicial cognizance of the issues facing self-represented litigants, especially those with mental health issues.

MacPherson and Rouleau JJ.A. observed that the motions judge had correctly stated the test for an extension of time: “(1) whether the appellant formed an intention to appeal within the relevant period; (2) the length of and explanation for the delay; (3) any prejudice to the respondent; (4) the merits of the appeal; and (5) whether the justice of the case requires it.”

The majority held that the chambers judge did not err in applying this test. She had agreed that granting the motion would cause no prejudice to the respondent. The majority held that there was no need for the chambers judge to go further and consider the “extreme” prejudice to the appellant of denying her motion – namely, that her civil action would not proceed, which is the result in every case in which an extension of time is not granted.

They also held that the motion judge had not ignored the justice of the case factor:

[5]        … Although Weiler J.A. did not specifically mention this factor, it is obvious that her consideration and balancing (because the appellant was successful on the prejudice factor) of the other four factors was directed precisely at the justice of the case in the motion before her”.

The majority also refused to admit the appellant’s fresh evidence, which allegedly showed that her appeal had merit, stating “In our view, this evidence does not meet the test for admission and is, therefore, not admitted.” The appeal was thus dismissed.

Perhaps more interesting was Lauwers J.A.’s one-paragraph dissent:

[8]          The legal system does not deal well with people who are suffering from mental health issues, especially those who are self-represented. Fair access to justice can be a real problem for them. They sometimes require an unusually high level of judicial direction and assistance, including indulgences. Where there is evidence that an appellant has substantial mental health issues, as is shown in this case by the material in the record and the fresh evidence, it would, in my view, be appropriate to temper the elements in the ordinary tests somewhat in the interests of the justice of the case. The elements of the test at issue, in this case whether an extension of time to file a notice of appeal should be granted by the court, ought to be read through a mental health lens, with special focus on the actual prejudice to the responding party of granting the relief sought. I agree with the chambers judge that, on this record, there would be no real prejudice to the respondent if the appellant were given an extension of time to file the notice of appeal; I would therefore allow the fresh evidence motion and the appeal from the chambers judge, but would also impose peremptory orders on the appellant to move the appeal along.

MacPherson and Rouleau JJ.A. did not explicitly say why the fresh evidence was inadmissible. Perhaps it should have been proffered earlier. Alternatively, it could not have affected Weiler J.A.’s conclusions that there was insufficient evidence that the appellant’s mental health prevented her from filing a notice of appeal on time and that her appeal seemed to have no merit (a conclusion shared by Murray J. of the Superior Court). On that note, Lauwers J.A. did not explicitly state that he believed the appeal had merit.

Thus, though the five-part testing for granting leave to extend time to file a notice of appeal is clear, there is arguably some uncertainty about how it is to be applied in the future, at least in cases such as Kirby, where the appellant is a self-represented person suffering from mental health issues.