Court File and Parties
Court of Appeal for Ontario Date: 20231010 Docket: COA-23-OM-0168
van Rensburg J.A. (Motions Judge)
Between:
Ladan Javid as Estate Trustee of Aghdas Javid Respondent/Applicant (Responding Party)
And:
Richard Keith Watson, Richard K. Watson Professional Corporation Appellants/Respondents (Moving Parties)
Counsel: R. Watson, moving party, appearing in person P. Robson, appearing for the moving party Richard K. Watson Professional Corporation (“RKWPC”), but making no submissions J. Javid, appearing in person on motion to be added as a party M. Swadron, appearing for the responding party, moving party on motion for security for costs
Heard: October 6, 2023
Reasons for Decision
[1]
Overview
This is a motion for an extension of time to appeal and for leave to add Jasmine Javid as a party to the appeal. The responding party opposes the extension of time and asserts that, if time to appeal is extended, the motion to add Ms. Javid is premature. The responding party also seeks security for costs if the extension of time is granted.
2For the reasons that follow, the motion to extend time is dismissed. As a result, the other requested relief falls away. If I had granted the extension of time, I would have adjourned the motions to add Ms. Javid as a party and for security for costs.
3On a motion to extend time under r. 3.02 of the Rules of Civil Procedure, the onus is on the moving party to establish the grounds for an extension. While each case depends on its own circumstances, the following factors are relevant: (1) whether the moving party had an intention to appeal within the relevant period (i.e. 30 days from the date of the order under appeal); (2) the length of, and explanation for, the delay in appealing; (3) prejudice to the responding party; and (4) the merits of the proposed appeal. The overarching principle is whether the justice of the case requires the extension of time: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636 at para. 15.
[4]
Background
The background to the original judgment is set out succinctly in Pardu J.A.’s reasons dated July 19, 2023, following an earlier attendance referred to below, and need not be repeated here. I will begin by addressing what transpired between December 7, 2022, the date of the judgment sought to be appealed, and the argument of the motion for an extension. I will return to certain observations of Pardu J.A., with which I agree, in addressing the justice of the case.
5On December 30, 2022, Mr. Watson sent an email to Mr. Swadron that stated that he would provide his comments on the draft judgment early the following week, that he was preparing a notice of appeal as well as a motion for a stay, and that he anticipated that Jasmine Javid would move for leave to be a party to the appeal. On January 27, 2023, after the expiry of the appeal period, Mr. Watson sent another email to Mr. Swadron apologizing for the delay, stating that he expected to provide a motion record the following week, asking whether there was consent to an order adding Ms. Javid as a party, and indicating that he would review the draft order and “advise soonest”.
6Mr. Watson did not take any of the steps set out in his emails. He never approved the draft judgment, necessitating an appointment to settle its terms before the application judge (Mr. Watson did not attend). On May 24, 2023, the responding party, in a contested motion, obtained an order finding the moving parties in contempt of the judgment. The contempt order required them to take immediate steps to comply with prior orders, including to provide various information and documents, and amended the judgment to provide that, if a certain condominium unit (the “King St. condominium”) was sold, the net proceeds of sale would be paid to the responding party and not paid into court.
7It was not until June 9, 2023, that the moving parties brought this motion. It was supported by two affidavits, one sworn by Jasmine Javid and the other by a law clerk at Mr. Watson’s law office. Neither affidavit addresses the intention to appeal or the delay. Mr. Watson did not deliver an affidavit. The motion materials include a notice of appeal setting out 46 grounds of appeal.
8On the return date of the motion, June 30, the moving parties sought an adjournment, which was not opposed by the responding party, provided that terms were attached to the adjournment. Coroza J.A. adjourned the motion to September 19, 2023 (ultimately scheduled by this court for October 6, 2023) on terms that required the moving parties to (1) provide responses to outstanding requests in Mr. Swadron’s letter dated June 20, 2023, by July 17, 2023; (2) pay outstanding costs awards by August 30, 2023; and (3) deliver any reply materials by August 18, 2023 and their factum by August 30, 2023.
9On July 19, 2023, Pardu J.A. dismissed a motion by the moving parties for an order that the net proceeds of sale of the King St. condominium be paid into court pending the hearing of the extension of time motion. She ordered costs against the moving parties payable by August 20, 2023, and that failing payment the responding party could move without notice for a dismissal of the motion to extend time.
10The moving parties did not comply with the terms of Coroza J.A.’s order or pay the costs ordered by Pardu J.A. as required. Instead, the day before their motion was before me, they delivered a supplementary motion record containing two lengthy affidavits of Jasmine Javid dated May 9, 2023 and October 3, 2023 and their factum. Mr. Swadron advised he had only recently received documents in purported compliance with Coroza J.A.’s endorsement, and payment of $25,000 in costs, leaving unpaid the sum of $5,300, including the costs order of Pardu J.A. I note that the responding party did not seek a dismissal of the extension motion solely on the basis of non-compliance with the earlier orders, but asked that the extension motion be determined, and dismissed, on its merits.
[11]
Analysis
Turning to the relevant factors, the moving parties provide no real evidence in support of the contention that there was a continuing intention to appeal or to explain the delay in appealing within 30 days or in bringing the motion for an extension of time. While the December 30 and January 27 emails communicate an intention to appeal and then to bring a motion for an extension of time, the moving parties did nothing to advance the appeal or the motion until they brought this motion in June, and on its return date they sought an adjournment. I see nothing in the materials that would suggest a continuing intention to appeal the judgment; instead, the moving parties appeared on and defended a contempt motion for its enforcement and did not bring the extension motion until after the contempt order was granted.
12The moving parties submit that their delay in moving for an extension of time resulted from the need to consult with and to obtain instructions from Jasmine Javid and the National Spiritual Assembly of the Bahá'ís of Canada (the other beneficiary of the disputed trust), and the need for Ms. Javid to obtain independent legal advice.
13This submission is not supported by any evidence, and it is belied by the fact that Mr. Watson did not communicate any of these purported concerns to the responding party. Instead, Mr. Watson indicated in December 2022 that he was preparing a notice of appeal and that he was seeking to have Ms. Javid added as a party, and in January 2023 that he expected to provide his motion materials the following week. If these purported concerns ever existed, there is no indication they were resolved by the time the motion was before me. There is no evidence of any communication with the National Spiritual Assembly of the Bahá'ís of Canada. As for the need for independent legal advice for Ms. Javid before the extension motion could proceed, her latest affidavit makes it clear that she has not retained independent counsel. In the meantime, Mr. Watson has filed and relied on her affidavits throughout the proceedings, and his submissions before me focused almost entirely on her alleged interests.
[14]
Merits of the Proposed Appeal
As for the merits of the proposed appeal, I am mindful that a motion for an extension of time is not an occasion to do a “deep dive” into the merits. That said, compelling merits may tip the balance in favour of an extension of time in cases where other factors may militate against extending time: 40 Park Lane Circle v. Aiello, 2019 ONCA 451, at para. 9.
15That is not this case. Rather than pointing the court to alleged errors of law or palpable and overriding errors of fact or mixed fact and law, and explaining how an appeal of the judgment might be successful, Mr. Watson made lengthy submissions that essentially sought to reargue the case that was before the application judge. He did not address the serious findings that were made against him with respect to his conduct in relation to the creation of the trust, the estate and Jasmine Javid. Instead, he made broad and unsupported assertions, including that unless the appeal were allowed, Ms. Javid would get “nothing” from the estate, and that Mr. Swadron had a conflict of interest (which was firmly rejected in an earlier decision, with leave to appeal to the Divisional Court denied). The moving parties have not persuaded me that the merits of the proposed appeal weigh in favour of an extension of time.
[16]
Prejudice and the Interests of Justice
I am also satisfied that an extension of time would be prejudicial to the responding party and is contrary to the interests of justice. I echo Pardu J.A.’s comments at para. 14 of her reasons dated July 25, 2023. There is a significant pattern of delay and obfuscation on the part of the moving parties. The responding party has been frustrated and delayed in the administration of the estate and has had to take steps and incur costs to address problems created by the moving parties, both leading up to and in the course of the litigation. There is an ongoing concern about Mr. Watson’s influence over and his purported representation of Ms. Javid’s interests in this matter notwithstanding that he contends that she is now self-represented. The moving parties’ conduct shows a pattern of obstruction and delay that is inconsistent with any good faith attempt to proceed with an appeal.
[17]
Disposition
For these reasons the motion for an extension of time to appeal is dismissed with costs to the responding party payable by the moving parties, fixed at $11,500 inclusive of disbursements and applicable taxes.
“K. van Rensburg J.A.”
