Court File and Parties
CITATION: Shekhdar v. K&M Engineering, 2011 ONSC 251
COURT FILE NO.: 279/10
DATE: 20110117
SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT
RE: KERSASP SHEKHDAR, Moving Party (Plaintiff)
AND:
BEARD WINTER LLP, Responding Party (Creditor)
BEFORE: MOLLOY J.
COUNSEL: Mr. Shekhdar, in person
Beard Winter, in person through partner Robert C. Harason
HEARD: In writing (in Toronto)
Endorsement
(Motion to Extend Time for Appeal)
Introduction
[1] Kersasp Shekhdar seeks to appeal from the Order of Roberts J. dated March 3, 2010 (“the Order”), in which she found as follows:
The Direction signed by Mr. Shekhdar is valid and enforceable and K&M should pay the monies owing directly to Beard Winter.
K&M does not have a right of set-off.
The damages payable under the judgment of Thorburn J. are $7,943.89.[^1]
[2] There is an appeal as of right from that Order, but the notice of appeal was required to have been delivered within 30days.
[3] Mr. Shekhdar, who is not represented by counsel, initially brought a motion to stay the Order. When he learned this was not the correct procedure, he filed a notice of motion for leave to appeal and sought leave to extend the time for the leave motion. By Endorsement dated September 16, 2010, I held that the Order was final in nature and leave was not required.[^2] I also gave directions with respect to the bringing of a motion to extend the time for delivery of a notice of appeal, if Mr. Shekhdar wished to do so. If Mr. Shekhdar delivered such material, the responding party, Beard Winter, was given the option of consenting to the extension of time or filing responding material.
[4] Mr. Shekhdar did deliver material (filed with the court on October 15, 2010) and Beard Winter did not consent to the extension of time. Instead, Mr. Harason (a partner with Beard Winter) delivered a Responding Motion Record (filed October 21). Mr. Harason did not deliver a factum at that time, although Mr. Shekhdar had included a factum with his materials. There was some skirmishing between the parties about whether the term in my previous order imposing a time for the delivery of responding “materials” was meant to include a factum.
[5] Ultimately, Mr. Harason brought a motion in writing for leave to deliver his factum after the delivery of any reply affidavit by Mr. Shekhdar. In the same motion, he sought leave to refer to an Order made by Master Short on October 27, 2010 (which was after the time for the delivery of Beard Winter’s responding material) and also sought leave for Beard Winter to serve its motion materials on Mr. Shekhdar by email. Mr. Harason’s motion record with respect to this relied was filed on November 12, 2010, and includes the proposed factuam as an attachment.
[6] Subsequently, Mr. Shekhdar delivered reply materials to Mr. Harason’s responding materials, as well as reponding materials with respect to Mr. Harason’s motion to postpone the time for filing of his factum.
Procedural Matters
[7] On September 20, 2010, Mr. Harason wrote to me directly, with a copy to Mr. Shekhdar by email, raising issues with respect to the delivery of materials, which would amount to a variation of my prior order. Part of the relied sought related to whether service on Mr. Shekhdar could be effected by email, a matter of considerable contention between the parties for some time. Also included in the letter was a gratuitous comment that Master Dash had recused himself from this file because Mr. Shekhdar had filed a complaint about him to the Judicial Council. Not surprisingly, Mr. Harason’s letter to me provoked a response from Mr. Shekhdar, also addressed to me, responding to a number of the issues raised, including disputing the accuracy of what Mr. Harason had been said about Master Dash.
[8] In his letter, Mr. Shekhdar also objected to Mr. Harason communicating directly with a judge in this manner. I agree that this is an unacceptable practice and must stop. Communications about routine matters may be made through the court office. Where a court order is rquired, a proper motion must be brought. The fact that motions in this matter have been conducted in writing is not license for the parties to write directly to the judge hearing the case. I know that this has also gone on in the past. I will not be accepting it in the future.
[9] With respect to Mr. Harason’s factum, I had intended the word “materials” to include all “materials” to be filed on the motion, including facta. However, I will consider the factum delivered by Mr. Harason, even though it was delivered late.
[10] I have no difficulty with the resference to Master Short’s Order. However, it has no impact on my decision in this matter.
Extension of Time to Appeal
[11] In my view, Mr. Shekhdar has met the test for extension of the time for delivering his notice of appeal. It is clear to me that Mr. Shekhdar always intended to set aside or reverse the Order of Roberts J. in some way, but was unsure of the proper method of going about it. He is not represented by counsel and the issues about what is final and what is interlocutory are not easy, even for persons trained in the law. I do not accept the submission of Mr. Harason that Mr. Shekhdar deliberately chose wrong procedures as a “tactical” move. Mr. Harason did not specify what such a tactic would have sought to accomplish, and the logic of it escapes me. I accept Mr. Shekhdar’s explanation that he simply made mistakes.
[12] I recognize that Mr. Harason did tell Mr. Shekhdar that he was following the wrong procedure, but given the level of vitriol between these two gentlemen, it is not surprising to me that Mr. Shekhdar did not rely on his advice.
[13] I am therefore satisfied that Mr. Shekhdar had a settled intention to appeal within the time limit and that he has adequately explained his delay.
[14] In respect of the merits of the appeal, this is not an onerous test at this stage. I am not satisfied that Mr. Shekhdar’s appeal is so devoid of merit that he should be deprived of the right of appeal merely because he did not understand the rules of procedure.
[15] Finally, I do not find that there is any prejudice to the responding party as a result of the delay, which is the test. As I understand it, the funds in question have been paid to Beard Winter by K&M under the Order of Roberts J. Those funds shall remain with Beard Winter until the resolution of the appeal. There is no evidence that the responding party is in any different position with respect to the issues before the court than would have been the case if Mr. Shekhdar had followed the correct procedure and filed his notice of appeal within the required 30 days.
[16] Accordingly, leave to file the notice of appeal is extended to February 1, 2011.
Ongoing Matters
[17] Since the notice of appeal was included in Mr. Shekhdar’s material on this motion, I shall deem it to have been served on Beard Winter on October 7, 2010. Mr. Shekhdar shall serve his appeal record on Beard Winter by fax or email by February 1, 2011 and shall send a hard copy by air mail to the court office immediately thereafter.
[18] Following that, the parties shall comply with the rules with respect to time periods. However, Mr. Shekhdar may serve his materials by email or fax as before, and shall immediately thereafter air-mail the hard copy with proof of service to the Divisional Court office. This system has worked effectively in the past. I do not agree that requiring Beard Winter to print off a hard copy is an onerous or unduly costly requirement for a law firm with its resources. They will already have most, if not all, of the material that will be in the motion record and can use that material and renumber it to be consistent with the motion record if they want to save expense.
[19] Service of the respondent’s factum for the appeal may be effected by email, provided it is less than 30 pages including schedules and cover pages. All other material to be served by the respondent in connection with the appeal or any other pre-hearing matters shall be served by email, with the effective date of service being the date the email is sent, and also immediately thereafter, a hard copy shall be sent to Mr. Shekhdar by courier. I appreciate that this will involve some extra expense for the law firm in terms of the cost of the courier, but I consider this necessary because of problems in the past with large volumes of material being sent by email.
[20] I also recognize that there are often problems in complying with time limits due to having to transport things thousands of miles and across international borders. Any mechanical difficulties of this nature should be addressed in writing with the Registrar and, where necessary, I will grant leave to extend the time to accommodate such problems. I will be flexible with mechanical and logistical problems, but not with failure to prepare materials in a timely way.
[21] I will remain seized if there are any pre-hearing matters that need to be resolved prior to the hearing of the appeal. Those motions will be done in writing and service will be as I have already ordered. The normal rules for timing shall be observed as closely as possible, allowing for the extra time required to deliver materials to and from Pakistan. If the parties cannot work these things out between them, written submissions may be sent to me through the Divisional Court office.
Costs
[22] As with my previous with respect to the leave to appeal motion, I will defer a decision on the costs of this motion. When all of the material has been filed for the appeal and all motions in connection with the appeal have been concluded, I will deal with the costs of all of these motions at the same time, in writing.
Other
[23] I remind both parties that they are not to communicate with me directly, unless I specifically invite them to do so. Finally, I caution the parties with respect to the nature of the sweeping and unnecessary allegations that are being made against each other. They are advised to stick to the issues on the appeal and avoid the unpleasant name-calling that has crept into their communications and pleadings in this matter.
MOLLOY J.
Date: January 17, 2011
[^1]: Under a previous endorsement (which is not the subject of the proceedings before this court), Roberts J. found that the $750 in costs ordered by the Master were not part of the Thorburn J. judgment.
[^2]: 1010 ONSC 4947