COURT OF APPEAL FOR ONTARIO

CITATION: Hussain v. Muyal, 2013 ONCA 635

DATE: 20131018

DOCKET: C56996

Weiler, Gillese and Lauwers JJ.A.

BETWEEN

Alamgir Hussain

Appellant

and

Moses Muyal, Myer Botnick and Moshe Ehrentreu

Respondent

Alamgir Hussain, in person

Aaron Postelnick, for the respondent Myer Botnick

Michael Katzman, for the respondent Moshe Ehrentreu

Chris Donovan, for Moses Muyal

Heard and released orally: October 16, 2013

On appeal from the order of Justice Sidney N. Lederman of the Superior Court of Justice, dated April 15, 2013.

ENDORSEMENT

[1] The motions judge dismissed the appellant’s action on the basis that it was an abuse of process. In so doing he exercised the court’s discretion to control its own process. Such discretionary orders are reversible where the court “misdirected itself or came to a decision that is so clearly wrong it amounts to an injustice” or “gives no or insufficient weight to relevant considerations.” Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 at para. 27.

[2] The appellant submits that the motions judge erred in holding the appellant’s case was a collateral attack on prior orders pertaining to the mortgage action. He submits that his claim arose out of conduct that post-dated the filing of the original mortgage action and related to the monies realized on the sale of the property. The motions judge dealt with this complaint in his reasons. He indicated that the appellant’s remedy was an assessment under the Mortgages Act, a remedy the appellant had initiated and then adjourned sine die.

[3] The appellant’s real complaint is that the failure to credit him with a mortgage payment and to correct the interest calculation in a timely fashion prevented him from redeeming the mortgage. The appellant could have raised this issue at any time throughout the mortgage proceedings. He did not.

[4] The motions judge’s decision is not clearly wrong. Nor, despite the submissions of the appellant, are we satisfied that the motions judge failed to give sufficient weight to any relevant consideration. The appeal is therefore dismissed.

[5] Costs to the respondents inclusive of all disbursements and applicable taxes are as follows: Muyal $1,000; Botnich $500; and Ehrentreu $200.

“K.M. Weiler J.A.”

“E.E. Gillese J.A.”

“P. Lauwers J.A.”