COURT OF APPEAL FOR ONTARIO
Weiler, Gillese and Lauwers JJ.A.
BETWEEN
Alamgir Hussain
Appellant
and
Moses Muyal, Myer Botnick and Moshe Ehrentreu
Respondent
Alamgir Hussain, in person
Aaron Postelnick, for the respondent Myer Botnick
Michael Katzman, for the respondent Moshe Ehrentreu
Chris Donovan, for Moses Muyal
Heard and released orally: October 16, 2013
On appeal from the order of Justice Sidney N. Lederman of the Superior Court of Justice, dated April 15, 2013.
ENDORSEMENT
1The motions judge dismissed the appellant’s action on the basis that it was an abuse of process. In so doing he exercised the court’s discretion to control its own process. Such discretionary orders are reversible where the court “misdirected itself or came to a decision that is so clearly wrong it amounts to an injustice” or “gives no or insufficient weight to relevant considerations.” Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 at para. 27.
2The appellant submits that the motions judge erred in holding the appellant’s case was a collateral attack on prior orders pertaining to the mortgage action. He submits that his claim arose out of conduct that post-dated the filing of the original mortgage action and related to the monies realized on the sale of the property. The motions judge dealt with this complaint in his reasons. He indicated that the appellant’s remedy was an assessment under the Mortgages Act, a remedy the appellant had initiated and then adjourned sine die.
3The appellant’s real complaint is that the failure to credit him with a mortgage payment and to correct the interest calculation in a timely fashion prevented him from redeeming the mortgage. The appellant could have raised this issue at any time throughout the mortgage proceedings. He did not.
4The motions judge’s decision is not clearly wrong. Nor, despite the submissions of the appellant, are we satisfied that the motions judge failed to give sufficient weight to any relevant consideration. The appeal is therefore dismissed.
5Costs to the respondents inclusive of all disbursements and applicable taxes are as follows: Muyal $1,000; Botnich $500; and Ehrentreu $200.
“K.M. Weiler J.A.”
“E.E. Gillese J.A.”
“P. Lauwers J.A.”