SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: RANIA EID ALAYCHEH, Applicant (Responding Party)
AND:
TALEB MUSTAFA ALAYCHEH, Respondent
AND:
KAMAL ALAYCHE, Respondent (Moving Party)
BEFORE: Mr. Justice D.A. Broad
COUNSEL: Michael P. Clarke, Counsel for the Applicant (Responding Party) Deborah L. Ditchfield, Counsel for the Respondent Kamal Alayche (Moving Party)
HEARD: September 29, 2020
ENDORSEMENT
Background and Nature of the Motion
1The applicant Rania Eid Alaycheh is the sister-in-law of the Respondent Kamal Alayche. The respondents Taleb Mustafa Alaycheh and Kamal Alayche are brothers.
2The applicant named the respondent Kamal Alayche as a party to the family law proceeding commenced by her against the respondent Taleb Mustafa Alaycheh, claiming that Kamal Alayche holds the property, in which she and the respondent Taleb Mustafa Alaycheh and their children resided, beneficially for the respondent Taleb Mustafa Alaycheh.
3In is noted that the respondent Kamal Alayche spells his surname differently than do the applicant and the respondent Taleb Mustafa Alaycheh.
4For clarity and efficiency, the applicant is hereinafter referred to as “Rania” or the “responding party,” the respondent Taleb Mustafa Alaycheh as “Taleb” and the respondent Kamal Alayche as “Kamal” or the “moving party.” No disrespect is intended by the use of the parties’ first names in this Endorsement.
5On January 20, 2020 Lafrenière, J. ordered Kamal to cause his corporate counsel or accountant regarding 1602579 Ontario Ltd. and Alaycheh Homes to produce to the applicant and her counsel the following:
various information and documentation respecting “Alaycheh Homes and Zeina Homes.” The information ordered to be produced included the following:
a list of officers, directors, and shareholders;
financial statements and full corporate income tax returns;
shareholders registers;
proof of any amounts paid to Taleb or for his benefit by either company;
proof of any loans made by either company to Taleb or loans to him by either company; and
proof of any benefits made by either company to Taleb.
(hereinafter referred to as the “Lafrenière Order”).
6By endorsement dated April 24, 202 and corrected by addendum dated April 27, 2020 (together the “Costs Order”) Lafrenière, J. ordered Kamal to pay costs to Rania in the sum of $5,932.50 inclusive of HST.
7Kamal has brought a motion, pursuant to Rule 3(5) of the Family Law Rules and subrule 3.02(1) of the Rules of Civil Procedure for an order extending the time to bring a motion for leave to appeal the Lafrenière Order and the Costs Order. He also seeks a stay of the Costs Order pending the outcome of the motion for leave to appeal and any appeal proceedings which may follow.
8The motion is opposed by Rania. Taleb does not oppose the motion.
Relevant Rules
9Pursuant to subrule 61.03.1(3) of the Rules of Civil Procedure a notice of motion for leave to appeal shall be served within 15 days after the making of the order or decision from which leave to appeal is sought, unless a statute provides otherwise.
10Subrule 3.02(1) of the Rules of Civil Procedure provides that the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just. Subrule 3.02(3) provides that an order extending or abridging a prescribed time relating to an appeal to an appellate court may be made only by a judge of the appellate court.
11Rule 3.02 is complimented by rule 2.03 which provides that the court may, only where and as necessary in the interest of justice, dispense with compliance with any rule and any time.
12In my view it is unnecessary to consider the application of rule 3(5) of the Family Law Rules.
Test on Motion to Extend
13The test on a motion to extend time is well-settled, requiring the court to consider:
whether a party formed a bona fide intention to appeal within the time limit;
prejudice to the responding party as result of the delay;
the length of delay and reasons for the delay; and
the merits of the proposed appeal.
No one factor is determinative (see LBP Holdings Ltd. v. Hycroft Gold Corp, 2018 ONSC 1794 (S.C.J.) at para 48).
14In the recent case of Blake v. Blake, 2019 ONSC 5724 (S.C.J.) Favreau, J. confirmed at para. 12 that ultimately all of the elements of the test are to be considered together, and the overarching consideration is what the justice of the case requires.
Holding
15For the reasons that follow, in consideration of all of the factors together the justice of the case supports extending the deadline for the moving party to bring a motion for leave to appeal and the motion is therefore granted.
Position of the Responding Party
16In her Factum the responding party objects to the relief sought by the moving party on two grounds:
(a) the moving party did not maintain a firm intention from the beginning to appeal; and
(b) the moving party has brought a pending motion before Justice Lafrenière to change her order of January 20, 2020 by removing paragraph 4, and to set aside the Costs Order. She says that the moving party’s efforts to seek leave to extend the time and leave to appeal, while at the same time proceeding with the motion to vary the Lafrenière Order and to set aside the Costs Order, is evidence of a lack of good faith.
17The responding party does not argue that the motion should be dismissed on any of the following grounds:
she will suffer prejudice from the delay;
the length of the delay has been inordinate or unexplained; or
the proposed motion for leave to appeal lacks merit.
18In oral submissions, Mr. Clarke argued that the preferable way to address the acknowledged confusion arising from the Lafrenière Order respecting the identification of the correct corporation from whom disclosure should be ordered is by case management rather than by an appeal. He points to the Endorsement of Chappell, J. dated August 31, 2020 in which she observed that the file is in dire need of case management and directed that a case conference, settlement conference or trial scheduling conference be held.
Intention to Appeal
19The moving party deposed in his supporting affidavit that, immediately upon reviewing Justice Lafrenière’s Endorsement, he discerned what he believed to be errors in her decision and immediately formed an intention to appeal. He states that his counsel at the time (not Ms. Ditchfield) did not inform him of any procedural requirements for an appeal. He determined that something needed to be done to address what he regarded as errors in the decision and immediately began steps to retain new counsel. He was able to arrange an appointment with Ms. Ditchfield on February 18, 2020.
20The moving party retained Ms. Ditchfield on February 18, 2020 and executed documentation to provide for the transfer of the file to her by his previous counsel. A Notice of Change of Representation was served on Mr. Clarke on the same date.
21In email correspondence to Mr. Clarke on February 24, 2020, Ms. Ditchfield advised that she was still awaiting receipt of the file from previous counsel but had ordered the transcript of the proceeding before Justice Lefrenière, with a view to determining whether to seek an extension of time to appeal to the Divisional Court and to seek leave to appeal.
22The motion for the extension was brought on June 29, 2020.
23The Responding party submits that the first indication that the moving party intended to appeal was in Ms. Ditchfield’s email of February 24, 2020. The responding party says that Ms. Ditchfield’s advice that she was considering whether to seek on extension of the time to seek leave to appeal contradicts the moving party’s assertion that he formed an immediate intention to appeal. She also states that there is no evidence that the moving party ever asked his previous counsel about the procedural requirements for appeal, nor is there any evidence from his previous counsel.
24In my view, the moving party’s affidavit is clear that he 1) came to believe that there were errors in Justice Lafrenière’s decision, 2) formed an immediate intention to appeal and 3) took immediate steps to retain new counsel. Ms. Ditchfield’s email of February 24, 2020 is not incompatible with the moving party having formed immediate intention to appeal upon review of the decision.
25Ms. Ditchfield was not counsel on the motion before Justice Lefrenière and, at the time of her email, was not in receipt of previous counsel’s file nor the transcript of the proceedings. The issue is whether the moving party formed an intention to appeal the decision within the prescribed 15-day period, not whether new counsel had determined, after expiry of that period, that a motion to extend was warranted. The uncontradicted evidence of the moving party is that he formed an intention to appeal within the 15-day period.
26In any event, the jurisprudence confirms that the absence of a formed intention to seek leave to appeal within the prescribed 15 days is not fatal where the justice of the case otherwise warrants the granting of an extension (see Blake at paras. 16-17 and the cases cited therein).
Prejudice
27The responding party does not suggest that she has suffered any prejudice resulting from the failure of the moving party to serve a motion for leave to appeal within the prescribed 15 days. As indicated, the moving party’s new counsel Ms. Ditchfield indicated to the responding party’s counsel within four business days of being retained, that she was in the process of reviewing whether to bring a motion to extend. The responding party has suffered no prejudice as result of the delay.
Length of Delay and Reasons for the Delay
28As indicated, the responding party does not take the position that the delay has been inordinate and, apart from questioning whether the moving party formed an intention to appeal within the 15-day period as discussed above, does not take issue with the moving party’s explanation for the delay.
Merits of the Proposed Appeal
29Thorburn, J., as she then was, noted in LBP Holdings at para. 55, citing Berg v. Canadian Hockey League, 2017 ONSC 6719 (Div. Ct.) that there is only a limited merits analysis required on a motion to extend time to seek leave to appeal and, citing Falus v. Martap Developments 87 Ltd., 2012 ONSC 5163 (Div. Ct.) paras. 7-8, that
the court should not be engaged in weighing the relative merits of the appeal. It should only be satisfied that the appeal has some merit.
30The moving party filed its proposed Motion for Leave to Appeal which stated as grounds (a) that there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal, and it is desirable that leave to appeal be granted, and (b) that there appears to be good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that leave to appeal should be granted.
31The moving party, if granted the extension, proposes to seek leave to introduce fresh evidence from the lawyer who prepared the Shareholders Agreement for 1376412 Ontario Limited o/a Zeina Homes, which was relied upon by Justice Lafrenière in her factual findings. This affidavit of the lawyer deposes that the inclusion of the moving party as a “Principal” in the agreement was an error on his part, drawing into question the correctness of the order for disclosure.
32Amongst other grounds, the proposed motion for leave to appeal refers to rule 19(11) of the Family Law Rules which it says constitutes a clear procedural code for obtaining non-party financial disclosure. The moving party asserts that the court should not impose obligations for financial disclosure that circumvent due process and prejudices non-party corporate and shareholder rights.
33As indicated in LBP Holdings, it is not appropriate for me to review and weigh the relative merits of the proposed appeal. Low, J. in Falus stated at para. 8 that the merits threshold is low.
34It is sufficient, for present purposes, that the proposed motion for leave to appeal and the proposed appeal, if leave is granted, raise issues of some merit. I find that they do.
Pending Motion to Change the Order and Set Aside the Costs Order
35As indicated above, the second of the two grounds upon which the respondent party disputes the motion for an extension relates to the moving party’s pending motion to change the Lafrenière Order and to set aside the Costs Order.
36The pending motion is brought pursuant to subrule 25(19)(b) of the Family Law Rules which provides that the court may, on motion, change an order that contains a mistake.
37In my view, the fact that the moving party has brought a motion to correct the order from which he seeks to appeal is not a relevant factor on the question of whether to grant the requested extension of the time to move for leave to appeal. The two motions are directed at different things.
38The case of Gray v. Rizzi, 2011 ONCA 436, [2011] O.J. No. 2563 (C.A.) stands for the proposition that subrule 25(19)(b) was not intended to apply to cases of alleged legal errors. Mistakes or errors in law are appealable errors and are not subject to correction under the subrule.
39In my view, it will be for Justice Lafrenière to determine whether any correction of her Order and the setting aside of her Costs Order are warranted pursuant to subrule 25(19)(b). The moving party had the right pursuant to the Family Law Rules to bring that motion and his having done so is not evidence of bad faith, so as to disentitle him from seeking leave to appeal the Lafrenière Order to the Divisional Court.
40With respect to the responding party’s submission that she has been put to additional and unnecessary expense as a result of the two motions having been brought, the question of costs in respect of the subrule 25(19)(b) motion will be within the discretion of Justice Lefrenière. The costs of the responding party in responding to that motion is not properly before me.
Case Management
41The question of whether case management is to be preferred over an appeal is also not before me. It is apparent that the proposed grounds of appeal extend beyond confusion about the identity of the corporation from which disclosure is sought. Moreover, the moving party is entitled to seek leave to appeal the Lafrenière Order, subject only to obtaining an extension of the time to do so.
Stay of Costs Order Pending Motion for Leave to Appeal and Appeal
42The moving party advised in submissions that a stay of the Costs Order is not being pursued.
Disposition
43In accordance with the foregoing, the motion of the Respondent Kamal Alayche to extend the time to move for leave to appeal the Order of Lafrenière, J. dated January 20, 2020 and her associated Costs Order is granted.
44The Respondent Kamal Alayche is directed to serve and file his Motion for Leave to Appeal within 15 days of the release of this Endorsement.
Costs
45The quantum of costs and the date for payment were agreed by counsel. In accordance with that agreement, it is ordered that the Applicant Rania Eid Alaycheh pay costs of the motion to the Respondent Kamal Alayche fixed in the sum of $5,000, inclusive of HST, on or before January 31, 2021.
Next Steps
46In accordance with the Case Management Endorsement of Favreau, J. dated June 17, 2020, counsel may contact the Divisional Court for a further case conference to set a timetable for the motion for leave to appeal.
D.A. Broad, J.
Date: October 6, 2020