2477791 Ontario Inc. v. Top Art Roofing Ltd.

Decision 1: Move to Dismiss on Procedural Grounds — Skip the Merits Entirely

The conventional approach would have been to prepare a full response to the appeal on the merits — arguing about roof quality, contract terms, and the trial judge's findings of fact. That would have meant months of additional briefing, potentially an oral hearing on the substance, and an uncertain outcome.

We took a different approach. The appellant had filed a notice of appeal but had failed to order the transcripts of the trial proceedings — a fundamental step in perfecting any appeal. Without transcripts, the Divisional Court had no record of what happened at trial. Without the trial judge's reasons, there was nothing for the appellate court to review.

We moved to dismiss the appeal on three grounds: (1) failure to order transcripts, (2) the trial judge's reasons were not before the court, and (3) the appeal may have been brought in the wrong court. Why argue about whether the roof was deficient when the other side had not even done the basic procedural work to get their appeal off the ground?

Decision 2: Creating a Paper Trail with the January 2025 Factum

In January 2025, we served our responding factum, which explicitly identified the deficiencies in the appeal: no transcripts had been ordered, the trial record was incomplete, and the appeal could not proceed in its current state.

This was not just advocacy — it was strategic documentation. By putting the appellant on clear written notice two months before the hearing, we eliminated any argument that they were unaware of the problem. When the hearing arrived on March 5, 2025, and the appellant revealed they had only ordered the transcripts that very morning — five months after filing the appeal — the court had our factum as proof that this was not a surprise to anyone. The appellant had known since January that their appeal was deficient and had chosen to do nothing.

Decision 3: Seeking Costs on Partial Indemnity — Reasonable but Firm

We sought costs of $6,000 on a partial indemnity basis. This was a measured request — enough to compensate our client for the expense of responding to a deficient appeal, but not so aggressive as to appear unreasonable.

The Divisional Court awarded the full $6,000. This sends a clear signal: filing an appeal and then failing to follow through has consequences. Our client was not only vindicated on the procedural point but also recovered costs for having to deal with an appeal that should never have proceeded in the state it was in.

1. Procedural compliance wins cases. Filing a notice of appeal is only the first step. An appellant must perfect the appeal by ordering transcripts, assembling the appeal record, and filing materials within the prescribed timelines. Failure to do so is not a technicality — it is a basis for dismissal. In this case, five months of inaction was fatal.

2. An appeal is not an automatic do-over. Some litigants treat an appeal as a second chance to argue their case. It is not. Appellate courts review the trial record for legal errors — and they cannot do that if the trial record is never provided. The Divisional Court was clear: without transcripts and the trial judge's reasons, there was nothing to review.

3. Strategic litigation means knowing which battle to fight. The strongest move in this case was not arguing about roof quality or contract terms. It was recognizing that the other side had made fatal procedural errors and pressing the advantage. Sometimes the most effective litigation strategy is never reaching the merits at all.