E. Sands & Associates Inc. v. Gidda
2025 ONCA 813
COURT OF APPEAL FOR ONTARIO
Paciocco J.A. (Motion Judge)
Parties
BETWEEN:
E. Sands & Associates Inc., in its capacity as the Trustee of the Estate of Kaldep Singh Gidda, a bankrupt -- Plaintiff (Responding party)
and
Kaldep Singh Gidda and Sunita Rani Saini -- Defendants (Moving party*)
Counsel
Mikesh Patel, for the moving party
Brandon Jaffe, for the responding party
Heard
November 24, 2025
Reasons for Decision
1For the following reasons, Sunita Rani Saini's application for an extension of time to file an appeal is denied.
2On July 27, 2016, a judgment of more than $1.5 million was awarded against Kaldep Singh Gidda. On August 3, 2016, he transferred his registered 50% interest in a property in Vaughan, Ontario to his sister-in-law, Ms. Saini, for no consideration. On November 3, 2016, he made an assignment in bankruptcy that was obviously influenced by the judgment debt he had acquired only a week before the transfer was made.
3On May 5, 2025, the responding party, E. Sands & Associates Inc., Mr. Gidda's bankruptcy trustee (the "Trustee"), secured an order setting aside the transfer and granting it a vesting order of Mr. Gidda's interest in the property (the "Order"). Based on admissions made by Ms. Saini during the trial, the trial judge concluded that Mr. Gidda had paid Ms. Saini fair market value for the 50% interest in November 2008 and, in the absence of an explanation for the no consideration transfer, she found it to be void against the Trustee.
4During pretrial proceedings Ms. Saini had made efforts to have Mr. Gidda, who was in British Columbia at the time, available to testify to support her claim that he did not have an equitable interest in the property. This issue was addressed in a pre-trial report dated December 11, 2024, by Shin J., who established a schedule requiring the provision of a will-say by December 13, 2024, a summons to be served on him by January 10, 2025, and proof of summons provided to the Trustee's counsel by January 13, 2025. The pre-trial report went on to provide:
The Defendant's witnesses are Sunita Rani Saini ("Saini") and Kaldeep Singh Gidda ("Gidda"). Issues related to Mr. Gidda's testimony, if any, are to be addressed at the outset of trial.
5But Ms. Saini did not comply with the schedule, call Mr. Gidda as a witness at the trial, or raise any issues with the trial judge about his availability. In her decision the trial judge concluded, "Mr. Gidda's evidence would have been required to prove a constructive trust, loan, or gift, but Ms. Saini did not call him as a witness. Nor did she provide any reasonable explanation for not doing so". Indeed, earlier in her decision the trial judge said that Ms. Saini "gave no explanation or reason why she did not call Mr. Gidda as a witness".
6On June 3, 2025, Ms. Saini attempted to file a notice of appeal of the Order. Since this is a bankruptcy matter, a ten-day filing deadline applied pursuant to r. 31(1) of the Bankruptcy and Insolvency General Rules, C.R.C., c. 368 ("BIA Rules"). It is not contested that her notice of appeal was more than two weeks late.
7Rule 31(1) of the BIA Rules and s. 187(11) of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, each provide me with discretion to extend the time to file a notice of appeal. The test to decide whether that discretion should be exercised is the same test employed for motions brought under r. 3.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, namely, whether it is in the interests of justice to do so: Comfort Capital Inc. v. Yeretsian, 2023 ONCA 282, 7 C.B.R. (7th) 17, at paras. 9-10; Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd., 2014 ONCA 500, 17 C.B.R. (6th) 91, at para. 26. The factors include: (i) an intention to appeal within the appeal period; (ii) the length of the delay in appealing and whether that delay is persuasively explained; (iii) the degree of prejudice to the responding party; and (iv) the merits of the proposed appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15; Liu v. Chan, 2024 ONCA 699, at para. 16.
8I do not take issue with Ms. Saini's claim that she formed the intention to appeal within the appeal period but mistakenly utilized the wrong procedure. Her explanation for the delay before filing the appeal is also understandable. As Trotter J.A. recognized in Liu, at para. 15, "deadlines are sometimes missed". It is evident that her counsel did not appreciate the appeal deadline applicable in bankruptcy cases.
9It is nonetheless concerning that Ms. Saini has taken four months to bring this motion forward to be argued. She has not explained this delay, which I find to be relevant. This delay in advancing the extension motion is prejudicial to the bankrupt estate which cannot be wound up until the ownership of the property is finally settled. The process arising from the delay has increased the costs of the bankruptcy and inconvenienced Mr. Gidda's creditors.
10In my view, the justice of the case does not warrant an extension given the combination of the prejudice I have just described, and the fact that the proposed grounds of appeal are totally lacking in merit. I agree with the responding party that Ms. Saini is attempting to secure a retrial in the hope of achieving a different result by calling a witness she did not ultimately seek to call at the trial. In substance, she is seeking a do-over. And she is doing so based on submissions that have no merit. As Trotter J.A. observed in Liu, at para. 20, "the merit of a proposed appeal is the most important consideration in deciding whether an extension of time should be granted".
11Ms. Saini raised two grounds of appeal in her motion materials. Advisedly, in oral submissions she did not pursue one of those grounds, namely her claim that evidence relating to the consideration she paid was not before the trial judge because of the failings of her former counsel. The trial record contradicts this assertion. The sole ground of proposed appeal that Ms. Saini featured in oral argument was her primary claim that she was unfairly deprived of Mr. Gidda's evidence, and that the trial judge acted unfairly in her treatment of Ms. Saini's failure to call him. Neither submission finds support in the material filed.
12The former claim is based, in part, on her contention that the trial judge did not treat the parties fairly by permitting the responding party's witness, Deane Gurney, to testify remotely, when Mr. Gidda was not allowed to do so even though he was prepared to give remote testimony on February 12, 2025. Ms. Saini's bald assertion that she was denied the right to present Mr. Gidda's testimony remotely is entirely unsupported, and manifestly incredible. The decision to permit Mr. Gurney to testify remotely was settled at the pre-trial conference. Ms. Saini raised no objections to proceeding in this way at any point in time. In contrast, the recorded pretrial discussions relating to Mr. Gidda reflect arrangements to have him testify in person, with no mention of a request by Ms. Saini to have him testify remotely. Most of the trial was, in fact, held remotely. This issue was not raised by Ms. Saini before the trial judge, notwithstanding the direction in the pre-trial report that "Issues related to Mr. Gidda's testimony, if any, are to be addressed at the outset of trial." There is no prospect that this submission would be accepted on appeal.
13Ms. Saini also submits that her attempts to have Mr. Gidda testify in person were unfairly frustrated. She offers evidence, not adduced at trial, supporting her claim that she had arranged to enforce an interprovincial subpoena to compel Mr. Gidda's testimony, and that an airline ticket was acquired that would have enabled him to testify but that this arrangement failed because of a change in the trial schedule. First, there was no change in the trial schedule. The parties were advised during the pre-trial conference that the trial would be held during the week of February 10, 2025. As is customary with short trials, on the Friday before the scheduled week, February 7, 2025, the Trial Coordinator Civil Trial Office advised the parties that the trial would begin on Wednesday, February 12, 2025 and run for three days. This was not an unexpected change of schedule, but rather the culmination of the scheduling process. Second, and more importantly, the airline ticket receipt that Ms. Saini seeks to rely upon shows Mr. Gidda not departing Toronto until 10:40 p.m. on February 12, 2025. There is no apparent reason why he could not testify on the first day that was ultimately scheduled for the trial. Once again, Ms. Saini did not raise any concerns before the trial judge at the outset of the trial about Mr. Gidda's testimony being frustrated, notwithstanding the direction in the pre-trial report that "Issues related to Mr. Gidda's testimony, if any, are to be addressed at the outset of trial."
14I also note that Ms. Saini has made no effort in her motion materials to explain why the evidence she is proposing to rely upon to support this ground of appeal would be admissible as fresh evidence, which it would have to be for her appeal to succeed given that it was not put before the trial judge. The prospect that it would be admissible is vanishingly small. All this evidence was available at the time of trial. Moreover, it is not cogent enough to gain admission, not only for the reasons I have already offered, but because the record before the trial judge supporting a finding that the transfer to Ms. Gidda is void was imposing, and flatly contrary to any claim that Mr. Gidda did not have an equitable interest in the property. Ms. Saini made admissions supported by that evidence that Mr. Gidda paid what the trial judge found to be market value, made the refinancing arrangements with the bank, paid the refinancing fees directly to the bank, arranged the property insurance, and received his interest in documents that show a transfer of an interest in the land to him, without any indication of a trust or loan arrangement. The trial judge gave multiple additional reasons why there would be no constructive trust, and she noted the responding party's position that an express trust would be void and of no effect, pursuant to s. 9 of the Statute of Frauds, R.S.O. 1990, c. S.19.
15In these circumstances I would not exercise discretion to extend the time to appeal. Indeed, in my view the justice of the case requires that, as important as the right to appeal is, it should not be accommodated by an order extending the time in aid of an appeal that is entirely lacking in merit, after the moving party has already delayed the completion of the bankruptcy estate through the delay she has caused. There is no merit in doing so.
16Ms. Saini is to pay costs in this motion to the Trustee in the amount of $7,797.00 inclusive of applicable taxes and disbursements.
"David M. Paciocco J.A."