COURT OF APPEAL FOR ONTARIO
DATE: 20160914
DOCKET: M46847
MacFarland J.A. (In Chambers)
BETWEEN
Canadian International Petroleum Corp. and Ghareeb Awad
Applicants (Moving Party)
and
Dover Investments Limited and Robert Salna and Dover Petroleum Corp.
Respondents (Respondents)
Dr. Ghareeb Awad, acting on behalf of the Corporation (CIPC)
Howard Wolch, for the respondent
Heard: Via Teleconference – September 12, 2016
ENDORSEMENT
[1] The moving party seeks an extension of time to appeal the order of Conway J. dated March 31, 2016 dismissing his application as an abuse of process.
[2] The test that a moving party must meet is clearly set out in this court’s decision Laski v. Laski et al. 2016 ONCA 337:
The overarching principle on a motion to extend time to file a notice of appeal is whether the “justice of the case” requires that an extension be given: 1250264 Ontario Inc. v. Pet Value Canada Inc. 2015 ONCA 5 at para. 6. Each case depends on its own circumstances but, in answering that question, the court is to take into account all relevant considerations, including:
Whether the moving party formed a bona fide intention to appeal within the relevant time period;
The length of, and explanation for, the delay in filing;
Any prejudice to the responding parties caused, perpetuated or exacerbated by the delay; and
The merits of the proposed appeal.
Intention to Appeal
[3] The moving party filed a notice of appeal to appeal the decision of Conway J. on April 13, 2016 in the Divisional Court. So while the notice was filed in a timely fashion, it was filed in the wrong court. I am satisfied that the moving party formed an intention to appeal within the 30-day time limit.
Length of and Explanation for the Delay
[4] Counsel wrote to the moving party by letter dated April 26, 2016 and suggested that he had commenced his appeal in the wrong court.
[5] Despite that advise the moving party pursued and perfected his appeal in the Divisional Court. The respondents brought a motion to quash the appeal and were successful in doing so in a motion before Stewart J., reasons released July 14, 2016. By then the moving party was out of time to bring his appeal in this court. His letter to the court after the release of its reasons on July 14, 2016 requesting that the court transfer his appeal to this court was not answered.
[6] Consequently, on August 18, 2016 the moving party filed this motion.
[7] I am satisfied that the moving party meets this second part of the test.
Prejudice to the Responding Parties
[8] The respondents argue that are prejudiced because the moving party owes them “hundreds of thousands of dollars” in costs which remain unpaid. The moving party counters that Canadian International Petroleum Corp. (CIPC) is “clean” and does not owe the respondents costs.
[9] I pause at this point to note that the moving party has filed no evidence on this motion. He has filed a motion record and a factum but no affidavit.
[10] Dr. Awad is a party on this proceeding as he is in the OBCA proceeding with Transpacific Petroleum Corp. (Transpacific). He owns 96% of the shares of CIPC which he transferred to Transpacific, a company wholly owned by him.
[11] There can be little doubt on this record that Dr. Awad and CIPC are as Conway J. found “privies”.
[12] There may be some prejudice to the responding parties in the circumstances in the sense that the litigation with Dr. Awad and his companies has been ongoing for many years. They have obtained costs orders that remain unpaid.
[13] Dr. Awad’s response is that the respondents owe him millions of dollars and Spence J. did find that the respondent’s conduct was oppressive in the Transpacific proceeding.
[14] In my view, the prejudice argument would not be the deciding factor.
Merits of the Claim
[15] In my view there is simply no merit to the proposed appeal. It is clear from the record that the claim is in relation to the Abu Sennan oil reserve.
[16] In 2006, Spence J. severed the claims in relation to that particular oil reserve from the OBCA (Transpacific) proceeding. Shortly thereafter, in December 2006 Dr. Awad commenced proceedings in the Supreme Court of British Columbia for various relief including the assignment of the Abu Sennan concession to CIPC. Paragraphs 35 through 40 of the statement of claim issued in Vancouver in December 2006 particularizes the claims made in relation to the Abu Sennan concession on behalf of CIPC.
[17] The Vancouver action was tried by Loo J. over some 18 days and during the course of which trial, the claims on behalf of CIPC in relation to Abu Sennan were dismissed.
[18] Justice Loo’s decision was appealed to the British Columbia Court of Appeal and following a three-day hearing – was dismissed. A subsequent request for leave to appeal to the Supreme Court of Canada was refused.
[19] In this court Dr. Awad makes serious allegations against the trial judge in that action – again bald assertions without any evidentiary support – all to the effect of the judge having given special treatment to the respondents, including meetings with their counsel in the absence of Dr. Awad.
[20] I explained to Dr. Awad that any such allegations were for the British Columbia Court of Appeal to have dealt with during his appeal – they are not matters for this court.
[21] CIPC although not a named party to the BC action was clearly, through Dr. Awad, seeking to have the Abu Sennan reserve assigned to it. There can be no doubt after a review of the pleading as well as his viva voce evidence before Loo J. that CIPC was his privy as Conway J. found.
[22] The issues in relation to the Abu Sennan reserve have been litigated and finally determined and it is not open to Dr. Awad or CIPC to attempt to relitigate those same issues in Ontario years later.
[23] Further, it is clear from the pleading that Dr. Awad, Transpacific and CIPC were aware of their claims in relation to the Abu Sennan reserve at least as early as 2006. The application issued September 21, 2015 is long out of time, the limitation period having expired several years ago.
[24] In conclusion in my view there is no merit in the application and accordingly there should be no extension of time granted to appeal the order of Conway J.
[25] The motion is dismissed.
[26] Costs were not addressed at the conclusion of the hearing. If the respondents seek costs of this motion, they may make brief written submissions of no more than three pages together with a costs outline within ten days and the moving party shall have a further ten days to respond.
[27] All submissions can be made electronically.
“J. MacFarland J.A.”