Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240514 DOCKET: M54897 (COA-23-CV-0258)

Roberts, Coroza and Gomery JJ.A.

BETWEEN

2137073 Ontario Inc., Arye Lankar, Lina Balian, Shawn Gabriel, Elena Keimakh and 2380376 Ontario Ltd. Plaintiffs (Respondents/Responding Parties)

and

Alex Furney and Maryam Furney also known as Miriam Furney Defendants (Appellants/Moving Parties)

Counsel: Alex Furney and Maryam Furney, acting in person Ryan Atkinson, Emilio Bisceglia and Jordan D. Sobel, for the responding parties

Heard: in writing

On appeal from the judgment of Justice Michael Dineen of the Superior Court of Justice, dated February 9, 2023.

Endorsement

[1] On January 16, 2024, we dismissed the moving parties’ appeal. Several months later, the moving parties bring this motion under r. 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to set aside or vary the dismissal of their appeal, and for an extension of time to revise their appeal materials.

[2] Rule 59.06 of the Rules permits the court to exercise its discretion to amend, set aside, or vary an order in rare circumstances: Hart v. Balice, 2022 ONCA 787, at para. 8. These circumstances include where the order reflects an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate, or in circumstances of fraud. As this court also noted in Hart, at para. 8, this rule is not intended to give parties another opportunity to relitigate a matter that has been finally determined. That is the case here.

[3] The moving parties do not explain the unwarranted delay in bringing this motion. In their affidavit material filed in support of their motion, the moving parties make several negative allegations concerning the quality of their lawyer’s representation of them on the appeal. Even if we were to accept the moving parties’ allegations as credible or reliable, which we do not, they do not affect the outcome of the appeal and do not support an order under r. 59.06 of the Rules. Specifically, and importantly, they do not change the uncontroverted fact that the moving parties owe monies to the responding parties under their mortgage agreement.

[4] In our view, this motion is an abuse of process and represents the latest in a series of unsuccessful attempts by the moving parties to avoid and delay the enforcement of their responsibilities under the mortgage agreement with the responding parties. The evidence before the summary motion judge amply supported that the responding parties had advanced funds under the mortgage, the funds were not paid back, and the moving parties were in default and did not seek to put the mortgage into good standing. We found no basis to interfere with the summary motion judge’s judgment and dismissed the appeal. Essentially, the moving parties were trying on their appeal to relitigate the summary motion judge’s findings that were open to him on the record. They are effectively seeking to do the same thing on this motion.

[5] This motion is therefore dismissed. The responding parties are entitled to payment forthwith from the moving parties of their costs of this motion on a full indemnity basis. If the parties cannot agree on the amount, they may serve and file brief written submissions of no more than one page, plus a bill of costs, within five days of the release of this endorsement.

[6] Relying on the moving parties’ conduct in these and other proceedings, the responding parties ask that this court make an order under r. 2.1 of the Rules dismissing the moving parties’ motion and prohibiting them from bringing any further motions in this proceeding without leave.

[7] We dismissed the moving parties’ motion under r. 59.06 and not under r. 2.1, although we found that the moving parties’ motion is an abuse of process. We therefore decline to entertain the responding parties’ r. 2.1 request.

“L.B. Roberts J.A.” “S. Coroza J.A.” “S. Gomery J.A.”