CITATION: Awad v. Dover Investments Limited, 2017 ONSC 1743
DIVISIONAL COURT FILE NO.: 156/16 DATE: 20170315
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, SPIES and PARAYESKI JJ.
BETWEEN:
GHAREEB AWAD and TRANSPACIFIC PETROLEUM CORP. Applicants
– and –
DOVER INVESTMENTS LIMITED, DOVER PETROLEUM CORP. and ROBERT SALNA Defendants/Respondents
Ghareeb Awad, by teleconference for the Applicants Howard Wolch, for the Respondents
HEARD at Toronto: March 15, 2017
SACHS J. (Orally)
[1] On this motion, the applicant seeks to set aside the order of Dambrot J. dated May 10, 2016 in which he refused to extend the time to appeal the decision of McEwen J. dated June 6, 2015.
[2] As set out in Marsden v. Her Majesty the Queen, 2012 ONSC 6118 (Div Ct.), a panel should only intervene to set aside of an order of a single judge if he/she made an error of law or palpable and overriding error of fact.
[3] In this case, there can be no dispute that the motion judge cited the correct test for deciding whether to extend the time for filing an appeal. As the motion judge noted that test is set out by the Ontario Court of Appeal in Laczko v Alexander, 2012 ONCA 803. The motion judge articulated and applied that test. Thus, his decision reveals no error of law.
[4] The applicant submits, however, that the motion judge committed a palpable and overriding error of fact when he found that the applicant had filed no evidence before him on the motion. According to the applicant, he filed a motion record on the motion that the motion judge must have failed to consider.
[5] The motion record was produced to us. It contains no affidavit and thus the motion judge was correct when he found that it contained no evidence.
[6] The applicant now seeks to file affidavit evidence before us. The only basis upon which we can accept this evidence is if the applicant can satisfy us that the evidence could not, by due diligence, have been adduced before the motion judge. (Palmer v R. [1979] SCJ No. 12 at para. 22.)
[7] The applicant admits that the evidence in question could have been put before the motion judge. His submission is that as a self-represented litigant he did not know that his evidence had to be put before the motion judge in the form of an affidavit or affidavits. According to him, all he was seeking to do was put in evidence that had been put before McEwen J.
[8] We do not accept that this is a reason why we should receive the evidence in question. The applicant may be self-represented, but he is a sophisticated litigant, who has represented himself in many proceedings across Canada. We cannot have a system of justice that operates with two sets of rules – one for represented parties and one for self-represented parties. The rules of procedure exist for a reason and abiding by them is essential to the effective administration of justice. In this case, the applicant is essentially seeking to litigate by installments. To allow him to do so would not only undermine one of the fundamental goals of our system of justice – finality - but also cause considerable prejudice to the respondents. In this regard we note that the applicant is a self-represented litigant who has failed to pay 13 costs orders totaling CDN$347,547.00 and US$110,000.00.
[9] For these reasons, we decline to consider any evidence that was not before the motion judge. Given this, there is no basis for finding that the motion judge committed a palpable and overriding error of fact.
[10] Finally, we note that this motion was also filed beyond the time period contemplated by the rules. Rule 61.16(6) requires that a motion to set aside an order of a single judge of an appellate court must be served within four days after the order is made. Dambrot J. made his order on May 10, 2016 and delivered oral reasons on the same day. The applicant filed his notice of appeal in relation to Dambrot J.’s order on May 24, 2016, fourteen not four days later.
[11] In that notice of appeal, the applicant acknowledged that Dambrot J. made his order on May 10, 2016.
[12] For these reasons, the applicant’s motion is dismissed.
SPIES J. (Orally)
[13] The respondents are entitled to their costs of this motion and the motion before RSJ Morawetz. They claim $80,325 on a substantial indemnity scale and $53,345 on a partial indemnity scale. We have found this motion to be devoid of merit and it has unnecessarily run up the already substantial costs of this protracted litigation. Furthermore, it is another attempt by Dr. Awad to re-litigate issues that have already been decided. In addition, he has made reckless attacks on the trial judge. All of that said, Dr. Awad’s conduct on this motion does not rise to the shocking level required for an award of costs on a substantial indemnity basis. However, a generous award on a partial indemnity basis is warranted. Accordingly, we fix the respondents’ costs in the amount of $53,000, all inclusive, payable within 30 days of today. Dr. Awad, I should draw your attention to Rule 57.03(2) which provides that where a party fails to pay the costs of a motion, the court may dismiss or stay the parties’ proceeding or make such other order as is just.
COSTS – SACHS J.
[14] I have endorsed the Supplementary Motion Record as follows: “For reasons given orally by Sachs J, the motion to set aside Dambrot J. order is dismissed. For reasons given orally by Spies J., the respondents are entitled to their costs fixed in the amount of $53,000 (all inclusive), payable within 30 days of today.”
___________________________ SACHS J.
SPIES J. I agree
PARAYESKI J.
Date of Reasons for Judgment: March 15, 2017 Date of Release: March 28, 2017
CITATION: Awad v. Dover Investments Limited, 2017 ONSC 1743 DIVISIONAL COURT FILE NO.: 156/16 DATE: 20170315
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, SPIES and PARAYESKI JJ.
BETWEEN:
GHAREEB AWAD and TRANSPACIFIC PETROLEUM CORP. Applicants
– and –
DOVER INVESTMENTS LIMITED, DOVER PETROLEUM CORP. and ROBERT SALNA Defendants/Respondents
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: March 15, 2017 Date of Release: March 28, 2017