COURT OF APPEAL FOR ONTARIO
CITATION: Mid-Can Design Builder Ltd. v. Al-Islamiyyah, 2016 ONCA 764
DATE: 20161017
DOCKET: M46853 (C62042)
Cronk, Juriansz and Brown JJ.A.
BETWEEN
Mid-Can Design Builder Ltd.
Plaintiff/Respondents (Moving Party)
and
Jaamiah-Al-Uloom Al-Islamiyyah and Abdul Majid Khan
Defendants/Appellants (Responding Parties)
Frank Feldman, for the moving party
Abdul Majid Khan, acting in person
No one appearing for Jaamiah-Al-Uloom Al-Islamiyyah
Heard and released orally: October 12, 2016
ENDORSEMENT
[1] The appellants have filed a Notice of Appeal from the judgment of Faieta J. dated the 29th day of March 2016. The preamble to the judgment states it was made to implement a Consent to Judgment that the parties executed on March 29, 2016.
[2] Section 133 (a) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides:
- No appeal lies without leave of the court to which the appeal is to be taken,
(a) from an order made with the consent of the parties…
[3] When they filed their Notice of Appeal, the appellants recognized that leave was required, and included a paragraph seeking leave to appeal. This does not meet the requirements of r. 61.03.1. Rule 61.03.1 sets out a procedure for making motions for leave to appeal generally. Rule 61.03.1(1) provides that motions for leave “shall be heard in writing, without the attendance of parties or lawyers.” Other subsections of the rule require the filing of factums on a prescribed timetable.
[4] In the Notice of Appeal, the appellants cited this court’s decision in Ruffudeen-Coutts v. Coutts, 2012 ONCA 65. In that case, the panel dealt with the motion for leave orally. Subsections 14 and 15 of r. 61.03.1(1) give the court discretion to require an oral hearing. The court in Ruffudeen-Coutts v. Coutts did require the appellant to prepare a proper record for leave to appeal and scheduled the matter to be returned before a panel. The procedure followed in Ruffudeen-Coutts v. Coutts is not the usual procedure.
[5] We see, in this case, no reason to depart from the usual procedure contemplated by r. 61.03.1. The appellants are required to bring a motion in writing and obtain leave to appeal before they are able to file a Notice of Appeal. Rule 61.03.1(16) provides that a notice of appeal must be delivered within seven days after the granting of leave.
[6] The motion to quash the present appeal is granted, without prejudice to the bringing of a motion for leave under r. 61.03.1. The time for the service of a notice of motion for leave to appeal is extended to November 15, 2016.
[7] The moving party is entitled to its costs of today’s motion. Taking into account the matters raised by Mr. Khan on behalf of the appellants, the moving party is entitled to costs in the amount of $1,000, inclusive of disbursements and all applicable taxes.
“E.A. Cronk J.A.”
“R.G. Juriansz J.A.”
“David Brown J.A.”