Awad v. Dover Investments Limited, 2016 ONSC 3277
CITATION: Awad v. Dover Investments Limited, 2016 ONSC 3277
DIVISIONAL COURT FILE NO.: 156/16
DATE: 20160510
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
GHAREEB AWAD and TRANSPACIFIC PETROLEUM CORP. Applicants
– and –
DOVER INVESTMENTS LIMITED and ROBERT SALNA and DOVER PETROLEUM CORP. Respondents (Responding Parties to the Motion)
Ghareeb Awad, In Person Harold Maltz, for the Respondents, Dover Investments Limited and Robert Salna and Dover Petroleum Corp.
HEARD at Toronto: May 10, 2016
DAMBROT J. (ORALLY)
[1] The applicants bring this motion for an Order to extend the time to deliver a Notice of Appeal from the judgment of McEwen J. dated January 6, 2015. The applicants also asked for an interim order that the respondents pay to the applicants ten million dollars U.S. currency pending a hearing of the references ordered by Spence J.
[2] Regarding the motion to extend time, the test whether the time to serve a Notice of Appeal should be extended has been discussed in many judgments. I will refer only to Laczko v. Alexander, 2012 ONCA 803 (C.A.), in which Weiler J.A. set the test out as follows:
In deciding whether to extend the time, the following factors are relevant: (1) whether the moving parties formed an intention to appeal within the relevant period; (2) the length of an explanation for the delay; (3) any prejudice to the responding party; (4) the merits of appeal; and (5) whether the justice of the case requires it.
[3] The applicants have not filed any evidence on this motion. As a result, there is no basis to conclude that there was an intention to appeal within the relevant time period, there is no explanation for the delay and there is no demonstration that the appeal would have any merit.
[4] Evidence that is pointed to by the respondent in its factum suggests that there was no intention to appeal within time. On the contrary, the applicants disavowed an intention to appeal. In addition there is prejudice to the respondents as a result of the delay. Finally, there is a basis to conclude that there is no merit to the appeal.
[5] While I am unable to say with certainty, having regard to the absence of material, whether there is or is not any arguable basis for an appeal - it seems to me that overall the applicants have utterly failed to satisfy the tests required in order to obtain an order to extend the time to file. As a result, I refuse to make such an order.
[6] With respect to the second issue, that is the request that the respondents be ordered to pay ten million dollars US to the applicants pending the hearing of the reference, again, the applicants have filed no evidence to support the granting of such relief. Dr. Awad has brought motions for similar relief in the past. These were heard by Spence, Carnwath and Newbould JJ. Each of these motions was dismissed as an abuse of process.
[7] The motion heard by Newbould J. was for an order that the respondent pay to Dr. Awad five million dollars US as an interim payment on account of the money withheld in the buyout of his interest in the REU Joint Venture. Newbould J. held that the same relief had been sought before Spence J. and Carnwath J. who had dismissed the motion as an abuse of process. Newbould J. also noted that Dr. Awad sought the same relief in a supplementary notice of cross- appeal in the Divisional Court and the same relief was dismissed by Kiteley J. on February 8, 2008. Newbould J. stated the following in his endorsement:
Apart from the fact there is no basis for the orders sought it is improper and an abuse of process to continue seeking the same relief that has been previously dismissed.
[8] In my view, it is an abuse of process for the applicants to seek the same relief in this motion. It is also a collateral attack on the decision of Newbould J., which is itself an abuse of process.
[9] I note as well that by order of Newbould J. on July 29, 2009, unless leave of a judge of the Superior Court of Ontario is granted, Dr. Awad is not to bring any further motions for orders that the respondents pay any amount to him, which he says have been withheld from him, or amounts he claims he will be entitled to on payment to him for his interest in the REU Joint Venture. The applicants have not obtained leave to ask for an interim payment before the references have been completed. This is an additional reason that the request must be refused.
[10] Accordingly, the motion is dismissed in its entirety.
COSTS
[11] I have endorsed the back of the Motion Record, “Motion dismissed for oral reasons recorded today. Costs to the respondent fixed at $12,500 all in.”
DAMBROT J.
Date of Reasons for Judgment: May 10, 2016
Date of Release: May 19, 2016
CITATION: Awad v. Dover Investments Limited, 2016 ONSC 3277
DIVISIONAL COURT FILE NO.: 156/16
DATE: 20160510
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
GHAREEB AWAD and TRANSPACIFIC PETROLEUM CORP. Applicants
– and –
DOVER INVESTMENTS LIMITED and ROBERT SALNA and DOVER PETROLEUM CORP. Respondents (Responding Parties to the Motion)
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: May 10, 2016
Date of Release: May 19, 2016