Executive Summary: Key Legal and Evidentiary Issues

• Constance Monk sought extensions of time to appeal foreclosure-related court orders after missing the statutory deadline by one day in each instance.

• The orders concerned the confirmation of sale and vesting of title of Ms Monk’s home, following her failure to make required mortgage payments.

• The Court applied established criteria for granting extensions, including bona fide intention to appeal, explanation for delay, prejudice to the respondent, benefit from judgment, and reasonable prospect of success.

• Both applications for extension were denied because the appeal was found to be moot after the sale order was set aside and because there was no reasonable prospect of success.

• The Court accepted evidence correcting a factual error regarding Ms Monk’s eviction, but found it irrelevant to the outcome.

• No specific monetary award was determined, but the Toronto Dominion Bank retained possession of the property and was permitted to relist it.

Background and foreclosure proceedings

Constance Monk was the owner of a home subject to a mortgage with the Toronto Dominion Bank (TD). After failing to make the required mortgage payments, TD obtained a Redemption Order Listing on October 13, 2022, which declared the mortgage valid and enforceable. Ms Monk did not appeal this Redemption Order. On January 8, 2025, Applications Judge Summers granted an Order Confirming Sale and Vesting Title (OCSVT), setting a vacant possession date of February 28, 2025, and a closing date of March 5, 2025. The OSCVT was later amended to change the possession date to April 14, 2025, and the closing date to April 17, 2025. Ms Monk’s appeal of the OSCVT was dismissed by a chambers justice on March 31, 2025.

Missed deadlines and applications for extension

Ms Monk did not vacate the premises by March 31, 2025, as required by the OSCVT order, and TD took steps to enforce it. Ms Monk was eventually evicted from her home, but later returned to the premises. On April 25, 2025, the purchasers withdrew from the purchase agreement. On May 7, 2025, TD obtained an order setting aside the OSCVT, confirming that TD was to retain possession of the property until further order of the court, and permitting the property to be relisted. Ms Monk filed an application for a stay of enforcement pending appeal on April 16, 2025, but this was dismissed on April 29, 2025, as she had not yet filed her Civil Notice of Appeal. Ms Monk filed her notice of appeal on May 1, 2025, one day after the April 30, 2025 deadline. She explained her late filing was due to difficulties with the electronic filing system and her health, particularly her visual impairments.

Court’s analysis of the extension applications

The Court of Appeal considered whether to grant an extension of time to appeal, applying the following criteria: bona fide intention to appeal, explanation for the delay, prejudice to the respondent, benefit from the judgment, and reasonable prospect of success. The Court found the delay was minor and understandable, but the appeal had no reasonable prospect of success because the OSCVT had been set aside, rendering the appeal moot. Additionally, the Redemption Order Listing, which was at the root of the foreclosure action, was not appealed and the time for doing so had long since passed.

Ms Monk then applied for permission to appeal the decision refusing her extension request, again filing her application late—on July 22, 2025, when it should have been filed by July 14, 2025. The Court found that the appeal remained moot and had no chance of success, and therefore denied the application for an extension of time to seek permission to appeal. The Court also accepted Ms Monk’s evidence that she eventually vacated the property voluntarily and that the Edmonton Police Service did not have to attend her home to assist with eviction, correcting a factual error in the previous decision. However, the Court found this fact irrelevant to the determination of the issues.

Outcome

Both of Ms Monk’s applications for extensions of time were denied. The Toronto Dominion Bank remained in possession of the property and was permitted to relist it until further order of the court. No specific amount was ordered, granted, or awarded in favor of the successful party.