Executive Summary: Key Legal and Evidentiary Issues

• Appellants failed to meet the strict deadline to seek leave to appeal a Divisional Court ruling.

• Their motion materials were repeatedly rejected due to procedural errors and non-compliance.

• The test for extension of time includes delay explanation, prejudice, intent, and appeal merit.

• The only arguable issue on appeal involved a claim of reasonable apprehension of bias.

• The court lacked authority to grant appeal leave but could extend time for such a motion.

• Despite procedural missteps, justice of the case justified allowing the motion to proceed.

Background and procedural history

Diana and Michael Hordo sought to challenge a decision of the Divisional Court dated December 6, 2024, regarding a dispute with CAA Insurance Company. Under Ontario's Courts of Justice Act and Rules of Civil Procedure, a party must seek leave to appeal to the Court of Appeal within 15 days of the judgment. Despite this, the Hordos did not file their motion for leave until February 18, 2025—well beyond the deadline.

Throughout early 2025, the appellants made multiple unsuccessful attempts to file their materials, each time encountering procedural rejections from court staff. Issues included incorrect forms, missing documents, improper formatting, failure to include required schedules, and inadequate notice periods. The court described their efforts as “ungovernable non-compliance,” despite Mr. Hordo being a former lawyer.

Legal issue and test applied

Justice Lauwers, sitting as a motions judge, had to determine whether to grant an extension of time to seek leave to appeal. The test for such an extension, as outlined in Enbridge Gas Distribution Inc. v. Froese, involves several factors: intent to appeal, length and explanation for delay, prejudice to the respondent, and the merits of the proposed appeal. While the Hordos clearly intended to appeal, they offered little explanation for the delay, and their procedural missteps were extensive.

Despite these issues, the court found there was minimal prejudice to CAA Insurance and determined that one aspect of the proposed appeal—the allegation of a reasonable apprehension of bias—had enough arguable merit to justify proceeding.

Reasonable apprehension of bias issue

The appellants alleged that a tribunal adjudicator who decided their case had, during her appointment, accepted a job offer from Aviva Canada, another insurance company. She then left the tribunal and began working for Aviva shortly thereafter. The Divisional Court had addressed and rejected this concern, but the Court of Appeal held that the allegation was not frivolous and warranted further review.

Outcome and next steps

Justice Lauwers granted an extension of time to bring the motion for leave to appeal. He deemed the previously filed materials as valid for the purposes of the motion and directed that the matter proceed through the court’s ordinary leave process. Costs of the motion were reserved for the panel that would ultimately decide the leave application. The appellants were warned not to submit further materials except a reply factum, if any.