Executive Summary: Key Legal and Evidentiary Issues

• Novak sought an extension of time to seek panel review of a single judge's order under s. 7(5) of the Courts of Justice Act.
   
• Filing of the notice of motion missed the four-day deadline under r. 61.16(6) by one day.
• Applicable test for an extension of time required weighing bona fide intention to appeal, length of delay, prejudice, and merits.
   
• Merits of the proposed appeal were treated as the most significant and potentially determinative factor.
   
• Underlying dispute traced back to a 2019 arbitral award concerning an investment Novak alleged was fraudulent.
   
• Justice Lauwers granted the extension despite finding the appeal appeared to lack merit, to avoid prolonging repeated panel-review applications.
   

Facts of the case

Jaroslav Novak, acting in person, moved before Lauwers J.A. of the Court of Appeal for Ontario to extend the time to seek panel review of an order made by Madsen J.A. on July 23, 2026. The dispute traces back to an investment recommended by CIBC World Markets Inc., which Novak alleges was fraudulent, calling it "a scam." Novak was unsuccessful in pursuing an arbitral award in 2019. On September 10, 2025, Sossin J.A. dismissed Novak's motion for an extension of time to appeal a Divisional Court order that had dismissed his appeal from the 2019 arbitral award, citing excessive and unexplained delay along with insufficient merit. Novak then sought panel review of Sossin J.A.'s order. Madsen J.A. was asked to extend the time for that panel review after a delay of nearly ten months, and she denied the motion because Novak had not addressed the applicable test for an extension of time. Novak subsequently moved before Lauwers J.A. to extend the time to seek panel review of Madsen J.A.'s decision.

Policy and legislative provisions at issue

The motion engaged s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which governs a party's ability to move to set aside or vary the order of a single judge of the Court of Appeal. Rule 61.16(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, required Novak to serve and file a notice of motion, with proof of service, within four days after Madsen J.A.'s order was made. The deadline to file fell on July 29, 2026, but the notice of motion was not filed until July 30, 2026, one day late. A footnote in the decision notes that the four-day period under r. 61.16(6) was subsequently amended to seven days by O. Reg. 275/26, s. 10(6), though the four-day period applied at the time Novak sought review.

Reasoning and analysis

Lauwers J.A. applied the test for an extension of time set out by Gillese J.A. in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15, which asks whether the "justice of the case" requires an extension, considering: whether the moving party formed a bona fide intention to appeal within the relevant period; the length of and explanation for the delay; any prejudice to the responding party; and the merits of the proposed appeal. Citing Liu v. Chan, 2024 ONCA 699, at para. 29, and Robson v. Law Society of Ontario, 2023 ONCA 709, at para. 5, Lauwers J.A. treated the merits factor as the most important and potentially determinative, noting that a lack of merit alone can justify denying an extension, per Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116, at para. 7, citing Enbridge, at para. 16. Lauwers J.A. accepted that Novak had always intended to appeal every adverse decision and observed that the delay in this instance was short, only one day. Even so, the judge found that the proposed appeal appeared to be without merit and might amount to an abuse of the court's process, a basis on which the motion could have been dismissed outright. Lauwers J.A. nonetheless declined to dismiss it on that basis, explaining that granting the extension was not a reflection of any error in Madsen J.A.'s order. Rather, Novak had engaged himself and the court in what the judge described as a "regrettable revolving door process" made possible by the prospect of panel review under s. 7(5), and since Novak would likely continue pursuing panel review regardless, it was preferable to let that review proceed than to expend further judicial resources on an interminable process.

Ruling and overall outcome

Lauwers J.A. granted Novak's motion for leave to extend the time to apply for panel review of Madsen J.A.'s order. The decision does not address damages, costs, or any other monetary relief; it is confined to the procedural question of extending time, and the amount at stake, if any, is not specified in the reasons.