Court File and Parties
DIVISIONAL COURT FILE NO.: 473/21
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: KHANNA v. Dutt
BEFORE: D.L. Corbett J.
COUNSEL: Mr Khanna, self-represented Appellant Dragana Bukejlovic, for the Respondents
HEARD: April 7, 2022, by ZOOM videoconference, at Toronto
REASONS FOR DECISION1
[1]
Overview
The court confirms the motion brought by Mr Khanna for an extension in the time to bring an appeal from the decision of Emery J., dismissing Mr Khanna's claims in the Small Claims Court pursuant to R.12 of the Small Claims Court rules (2021 ONSC 2027). This court dismissed the motion for an extension from the bench after hearing from Mr Khanna, without calling on counsel for the respondent. The court's reasons for this decision are as follows.
[2]
Test for Extension of Time
During the case management process, this court advised Mr Khanna that the test on a motion for an extension is as follows:
As summarized recently by the Divisional Court in Go Fleet Corporation v. So, 2021 ONSC 2199, the factors to be taken into account on a motion for an extension are:
(a) whether the moving party formed a bona fide intention to appeal within the appeal period.
(b) the length of and explanation for the delay.
(c) any prejudice to the responding party by the delay.
(d) the merits of the proposed appeal.
[3]
Delay and Explanation
The decision of Emery J. was released on March 24, 2021. Mr Khanna did not initiate appeal proceedings for two months. His explanation for this delay was that the "courts were closed" because of COVID. That statement is not true. The courts had been operating under COVID protocols for a year by the time the appeal period started in this case. Mr Khanna did not provide evidence of efforts he made to pursue his appeal, and instead baldly asserted "the courts were closed." I do not accept this as an explanation for failing to initiate the appeal within thirty days. I will take judicial notice that the court has been less strict about deadlines during COVID, and the delay in seeking to appeal to the time of Mr Khanna's initial inquiry of the court was not a long one. If this was the only impediment to an extension, I might grant it.
4Once Mr Khanna contacted this court by late May or June 2021, the Registrar required further information from Mr Khanna in order to accept a notice of appeal. In his evidence, Mr Khanna says that he responded to the court's inquiries on July 2, 2021. He says that, unfortunately, the cellular phone from which he made this response (using his gmail account) was destroyed when he dropped the phone in a sink full of water. He was unable to retrieve a copy of the email as a result.
5I do not accept this evidence. First, the Divisional Court archives its emails. If Mr Khanna had sent the email he described, this court would have a copy of the email. It does not. This leads to a conclusion that the email was not sent, a conclusion corroborated by Mr Khanna's inability to produce a copy of the transmitted email. Second, the court can take notice that destruction of Mr Khanna's phone would not have destroyed the copy of his email stored on the gmail server. In response to this point, Mr Khanna purported not to understand technology very well, and acknowledged that he had never checked his gmail account after getting a new phone, to see if a copy of his message to the court was still there. On a balance of probabilities, I am satisfied that Mr Khanna never sent an email to the court on July 2, 2021, and did not respond to pursue his appeal until October (at which time this court implemented case management of this extension motion).
6I pause here to note something not always appreciated in civil cases. This court reviews the record to decide what has been established on the evidence on a balance of probabilities. Baldly asserting something implausible does not handcuff the court's ability to make findings of fact. Further, when the court concludes that a party has made sworn statements that are not true, this can affect that party's credibility in respect to all of his evidence. I am satisfied on a balance of probabilities that Mr Khanna did not send the message he claims to have sent on July 2, 2021.
7This means that the appeal was not pursued with diligence to establish that an extension motion was required until October 2021, about seven months after Emery J.'s decision. That delay is long and not explained except by lack of diligence on the part of Mr Khanna. In all of these circumstances I am not satisfied that Mr Khanna has provided a reasonable explanation for his delay.
[8]
Prejudice
On the third branch of the test, I conclude that there would be no prejudice in granting an extension in this case, aside from inherent prejudice of continuing delay. That inherent prejudice would not preclude an extension if Mr Khanna had met the other branches of the test.
[9]
Merits of the Appeal
Finally, on the merits, there is no merit to the appeal itself.
10Procedural fairness: the process followed by Emery J., analogous to the process under R.2.1 in this court, was based on an assessment of the pleadings. There is no merit to Mr Khanna's argument that there ought to have been a formal motion with affidavit evidence. The whole point of the process undertaken below was to "weed out" a vexatious claim before defendants and the court were put to expense and time responding to it. The process below was fair.
11Substantive justice: the facts as found by Emery J. were available on the materials before him. All of the claims asserted are in respect to the defendants having brought or participated in legal proceedings against Mr Khanna in the Superior Court. During oral argument Mr Khanna confirmed that his claims were based on the defendants acting in bad faith in bringing and pursuing SCJ legal proceedings. This is classic follow-on litigation and is inherently vexatious. The venue for such claims is the SCJ, within the ongoing civil proceedings there. Emery J. was correct in so finding.
12In this instance, the decision below was rendered by an SCJ judge wearing his "hat" as an ex officio Small Claims Court justice. In the result, the parties received a careful and thorough decision at the standard of SCJ decisions. During case management, this court identified the challenges Mr Khanna faced in a motion for an extension of time in which to appeal, and, specifically, the problems his case appeared to present on the merits. Despite having been provided with this information, and thorough reasons from Emery J., Mr Khanna did not address these issues, and instead focused on a subsidiary factual issue that was not fundamental to the decision below (the nature of the insurance coverage under a policy of title insurance). I am satisfied that Mr Khanna was told what he needed to address to succeed on an extension motion and he did not do so.
[13]
Disposition
For these reasons the motion for an extension is dismissed.
[14]
Costs
Mr Khanna says that he has been unemployed for seven years and has only modest pension income. He argues against costs or for a modest costs order. In my view that would not be appropriate. Costs are an indemnity. When a party brings unmeritorious proceedings in this court and puts his adversaries to expense, he should expect the burden of an adverse costs award. Costs to the responding parties of this motion fixed at $5,000, inclusive, payable at a rate of $300 per month, on the first of each month, commencing June 1, 2022. Costs shall be payable to Dentons LLP in trust. If Mr Khanna misses any costs payment required by this decision, then the balance of the costs owing will become immediately payable in full.
15Counsel for the respondents shall provide the court with a draft order in WORD format reflecting this decision.
D.L. Corbett J.
Released by Email: April 7, 2022
This endorsement released: April 11, 2022