Court File and Parties

Citation: Riad v. Aziz, 2011 ONSC 6063 Divisional Court File No.: 356/11 Date: 2011-10-13 Superior Court of Justice – Ontario Divisional Court

Re: Nagy Riad, Appellant And: Marlien Aziz, Respondent

Before: Chapnik J.

Counsel: Nagy Riad, self-represented David Weisman, for the Respondent

Heard: October 12, 2011

Endorsement

[1] There are no grounds for this Court to set aside the order of the Registrar, dismissing the applicant’s appeal from the order and decision of Perkins J. rendered April 29, 2011.

[2] First, the materials filed by the applicant to attempt to do so, are not in order. Even accepting his submission that the grounds set out in the notice of motion be treated as an affidavit, no motion record was filed containing the relevant materials for such a motion.

[3] The motion engages rule 37.14(1)(c) which provides:

A party or other person who …

(c) is affected by an order of a registrar, may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.

[4] The applicant states that on Friday, September 9, 201, he received the notice that the appeal would be dismissed if certain conditions were not satisfied (although in his notice of motion, he says he never received notice that the appeal was not perfected until September 11, 2011, which is clearly not the case).

[5] Pursuant to rule 61.09, he was given until September 11, 2011 to perfect the appeal “unless it was perfected within 10 days of service” which he did not do. Not only was the appeal not perfected within the given time frame, but it has not been perfected to date.

[6] The order dismissing the appeal was received by him on September 23, 2011. In his motion materials, he states that due to “extremely stressful family circumstances”, he may have overlooked the need to file further materials in support of the appeal. Given that he has also “overlooked” the need to file proper materials before this Court, his explanation holds little water.

[7] This proceeding has a long history marked by numerous proceedings, many of which can be termed “duplicitous”. Indeed, Perkins J. noted that “the father has repeatedly been found to have abused the process of the Court. This is another such occasion”. He ordered that all proceedings in the family law matter remain in Newmarket Court and for good reasons outlined in the decision. He noted that pursuant to orders of McGee J. made in February 2011 and March 31, 2011, all proceedings were stayed and no further motions filed until the applicant paid the outstanding costs awards against him. Perkins J. also ordered that court staff be prohibited from accepting material in this case from the applicant until the costs are paid and the stay lifted.

[8] The applicant contends that the crux of his appeal will be the fact that the Newmarket Court cannot provide him with the sound amplification equipment he requires due to his profound deafness. This matter too has been dealt with by the various courts.

[9] In a decision dated February 15, 2011, Lauwers J. sitting as a judge in Divisional Court on a leave application noted (at para. 11):

The argument proceeded today despite the absence of assistive technology in the court room to permit Mr. Riad, who is hearing impaired, to hear. To accommodate him, Mr. Riad stood beside me in the witness box, and Mr. Weisberg (sic) stood immediately by him when he made submissions. Judging from the cogency of his arguments and responses, I have no doubt that Mr. Riad was fully able to hear today’s proceedings and to participate. [emphasis added]

[10] He made the same argument in the Toronto Superior Court before Perkins J. when the requested equipment came late and “he refused to try it out”. The court stated:

I am satisfied, however, that the father heard everything necessary to advance and defend his position…His disability was accommodated to the best of our efforts and did not result in a material disadvantage at the motion hearing.

[11] The criteria for the setting aside of a dismissal order such as this were set out in Reid v. Dow Corning Corp., [2001] O.J. No. 2365, subject to making an order that is just in the circumstances. The applicant’s motion does not meet the required tests. There are no special circumstances that would justify ordering otherwise.

[12] The respondent raised the question as to whether the ruling of Perkins J. was interlocutory rather than a final order, necessitating a motion for leave. If that were the case, his materials are again deficient in that regard, but had I heard such a motion, I would have granted leave, but dismissed this motion for the reasons stated above.

[13] The applicant, in his notice of motion seeks, yet again, an order removing David Weisman and Okell & Weisman as solicitors of record for the respondent. This matter was raised and dismissed in several forums, including the Court of Appeal, and it too is duplicitous and not properly before me. The motion did, however, require the attendance of Mr. Weisman and the costs order must reflect that.

[14] The motion to set aside the Registrar’s order is dismissed. Costs to the respondent in the sum of $1,000.00, all-inclusive and payable forthwith.

S. Chapnik J.

Date: 20111013