Executive Summary: Key Legal and Evidentiary Issues

• Timeliness of the notice of appeal and whether the applicant’s five-day delay was reasonably explained by his cognitive disability and circumstances.

• Procedural fairness concerning the judge’s decision to order security for costs without prior notice to the applicant.

• Allegation of judicial bias due to the judge’s reliance on the applicant’s prior litigation history when striking the application.

• Appropriateness of awarding costs to the respondent landlords after striking the application.

• Limitation of the appeal to issues regarding the security for costs order and the striking of the application, excluding the merits of the judicial review.

• Consideration of prejudice to the respondents, particularly in light of the applicant’s history of unpaid costs and judgments.

Facts of the case

In November 2024, the Residential Tenancies Commission (RTC) granted an order of possession to Fei Wang and Ping Jiang, the respondent landlords, for a property occupied by Aaron Goldman and his spouse as tenants. After the Goldmans refused to vacate, the landlords obtained a writ of possession from the Court of King’s Bench, resulting in the Goldmans’ eviction. Goldman then applied for judicial review of the RTC’s decision. At an uncontested civil list appearance, a judge, on his own motion and without prior notice to the parties, ordered Goldman to pay security for costs, with the stipulation that failure to pay by April 4, 2025, would result in the application being struck.

On April 16, 2025, Goldman had not paid the security for costs. He raised several arguments at a hearing before another judge of the Court of King’s Bench, but the application was struck and costs were awarded to the respondent landlords. The judge’s endorsement referenced Goldman’s familiarity with court processes and his repeated failure to comply with orders. The order striking the application and awarding costs was filed on June 2, 2025, and Goldman received it by email on June 4, 2025.

Procedural history and motion for extension of time

Goldman filed his notice of motion for an extension of time to appeal on July 7, 2025, which was five days after the 30-day deadline following the filing of the order. He argued that he believed the deadline was thirty days after he received the order, not after it was filed. He also cited his cognitive disability, supported by letters from his family doctor and two psychologists, as well as the absence of his assistant due to a car accident from June 28, 2025, to July 5, 2025, and personal family and work-related matters during the appeal period.

Legal standards and grounds for appeal

The Court of Appeal considered the four factors for granting an extension of time as set out in Delichte v Rogers, 2018 MBCA 79: continuous intention to appeal, reasonable explanation for the delay, existence of an arguable ground of appeal, and prejudice to the other party. The court found that Goldman had a continuous intention to appeal, as evidenced by his May 6, 2025, email stating, “The decision is going to be appealed and the costs order will be stayed.” The court accepted his cognitive disability and circumstances as a reasonable explanation for the five-day delay, but cautioned that this should not be taken as authority to ignore deadlines.

On the merits, the court noted that most of Goldman’s proposed grounds for appeal related to the judicial review itself, which had not been decided on its merits. The court identified two arguable grounds: whether it was procedurally unfair for the judge to order security for costs without prior notice, and whether the judge who struck the application was biased due to reliance on Goldman’s prior litigation history. The court also noted the ground regarding the costs award to the respondent landlords.

Discussion of policy terms and relevant clauses

The decision referenced the Court of Appeal Rules, specifically rule 11(1) regarding the 30-day deadline to file a notice of appeal after an order is filed, and rule 42, which allows for an extension of time at the court’s discretion. The court also cited the criteria for granting extensions as established in Delichte v Rogers, 2018 MBCA 79, and clarified that these criteria do not strictly limit judicial discretion.

Outcome and ruling

The Court of Appeal granted Goldman an extension of time to appeal, but only on the grounds related to the order for security for costs and the order striking the application. The extension did not apply to any grounds relating to the merits of the judicial review. The court ordered Goldman to pay $1,000 in costs to the respondent landlords, as they incurred unnecessary expense due to the late filing. The RTC did not request costs, so none were ordered in its favor. The court set deadlines for Goldman to file his notice of appeal, order and pay for transcripts, and file the appeal book and factum, warning that failure to comply would result in dismissal of the appeal without further order.

In summary, Goldman was granted an extension of time to appeal on limited grounds and was ordered to pay $1,000 in costs to the respondent landlords. The decision does not specify any additional amounts ordered or awarded beyond this costs order.