COURT OF APPEAL FOR ONTARIO

CITATION: Refaeli v. Salomon, 2016 ONCA 862

DATE: 20161116

DOCKET: M46902 & M46926

Lauwers J.A. (In Chambers)

BETWEEN

Tamar Refaeli also known as Tami Refaeli

Applicant (Responding Party/ Moving Party by way of cross-motion)

and

Amnon Salomon

Respondent (Moving Party/ Responding party by way of cross-motion)

Frank Lento, for the responding party/moving party by way of the cross-motion

Amnon Salomon, acting in person

Raphael Eghan, appearing as amicus curiae

Heard: October 27, 2016

ENDORSEMENT

[1] Amnon Salomon moves to extend the time within which he can appeal a vesting order granted by Diamond J. of the Superior Court of Justice on August 5, 2016. Tamar Refaeli, the responding party, moves to dismiss Mr. Salomon’s motion and, in the alternative, she seeks an order for security for costs of the appeal. I am obliged to bring some order into what has become a complicated morass, largely because of Mr. Salomon’s persistent refusal to take seriously his responsibilities under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and this court’s orders.

[2] This is a dispute about the ownership of a property located at 31 Felicia Court in Thornhill, Ontario. In his endorsement, dated August 10, 2015, Diamond J. recognized an Israeli consent final judgement that obliged Mr. Salomon to transfer title to the property to Ms. Refaeli. In his letter, dated October 18, 2016, Israeli counsel for Ms. Refaeli provides additional context:

The court should be made aware that the consent judgment was made in the context of an inheritance dispute amongst all of Amnon’s siblings, namely my client, her brother and sister and Amnon.

[3] I note that neither party takes issue with the jurisdiction of the Israeli court over the inheritance dispute.

[4] Mr. Salomon did not appeal Diamond J.’s recognition order on a timely basis.

[5] Instead, about a year later in February 2016, Mr. Salomon began a new action in Israel to set aside the settlement agreement that was the basis of the Israeli consent judgment recognized by Diamond J. Mr. Salomon obtained from the Israeli court an ex parte interim order staying the consent final judgment. On June 25, 2016, the Israeli court continued the interim stay order on conditions that, according to Israeli counsel for Ms. Refaeli, Mr. Salomon did not meet. As of October 2016, her Israeli counsel advises that the matter is still pending in the Israeli court. While Mr. Salomon proffers various explanations for what is going on in respect of the litigation in Israel, he has provided no evidence to substantiate these claims. On the evidence, it appears that Mr. Salomon is taking the same desultory approach to the Israeli proceedings as he is taking to the appeal proceedings in this court.

[6] Mr. Salomon then filed a notice in this court requesting an extension of the time to appeal the recognition order and asked for a stay of the order. Ms. Refaeli brought a responding motion seeking an order for security of costs of the appeal. On June 29, 2016, Hourigan J.A. dealt with these motions. He granted Mr. Salomon’s request for an extension of time to appeal the recognition order of Diamond J. and ordered the appeal to be perfected by July 29, 2016. He refused Mr. Salomon’s request for a stay of the recognition order. He adjourned Ms. Refaeli’s motion for security for costs to July 12, 2016 to enable Mr. Salomon to file responding materials.

[7] On July 12, 2016, Juriansz J.A. heard Ms. Refaeli’s motion for security for costs. In respect of that motion, Mr. Salomon says he was confused about the start time for the court and did not appear until court had adjourned for the day. Juriansz J.A. ordered security for costs in the amount of $25,000 to be posted by the perfection date, July 29, 2016. A written motion by Mr. Salomon asking Juriansz J.A. to reconsider was addressed on July 29, 2016. Juriansz J.A. refused to reconsider his security for costs order in light of the new material filed by Mr. Salomon, stating: “I am not persuaded the order for security for costs should not have been granted.”

[8] Mr. Salomon did not perfect the appeal of the recognition order by July 29, 2016, as provided in the endorsement of Hourigan J.A. and did not provide security for costs as ordered by Juriansz J.A. He also did not pay outstanding cost awards.

[9] Mr. Salomon refused to transfer the property to Ms. Refaeli, relying on the effect of the Israeli stay. By endorsement, dated August 5, 2016, Diamond J. issued an order vesting the property in Ms. Refaeli.

[10] I accept counsel for Ms. Refaeli’s assertion that Diamond J. was aware of the ongoing proceedings in the Israeli court because correspondence with the Israeli law firm representing Ms. Refaeli was part of the materials filed on the vesting motion. I also accept that the argument for whether the vesting order should be issued turned on the impact of the Israeli interim stay. I note that, apart from a letter from Israeli counsel for Ms. Refaeli, there is no formal documentation from the Israeli court indicating that the original decision was in fact formally stayed. Mr. Salomon provided no such documentation. Perhaps the Israeli stay was the basis upon which Hourigan J.A. noted in his endorsement, “with respect to the stay request, I am satisfied that there is some merit to the appeal,” although he dismissed Mr. Salomon’s motion for a stay.

[11] On September 6, 2016, Mr. Salomon brought a motion for an extension of the time to appeal the vesting order for a period of 30 days. When the motion came before MacFarland J.A. on September 16, 2016, Mr. Salomon requested an adjournment. MacFarland J.A. granted the adjournment and set October 27, 2016 as peremptory to Mr. Salomon, and also ordered him to pay costs in the amount of $750, inclusive of disbursements and HST. He has not paid the costs award.

[12] Before me, Mr. Salomon asks that the perfection date be postponed until 30 days after the date on which Diamond J. releases the transcript as well as the audio recording of the motion heard before him on August 5, 2016. Mr. Salomon asserts that Diamond J. has twice refused to release the transcript. I note that Mr. Salomon takes the position, in his material, that his appeal of the recognition order is still pending, despite the passage of the extended perfection date, his failure to post security for costs, and his failure to pay outstanding costs awards.

[13] To regularize the proceedings, it would be necessary for me to further extend the perfection date of the appeal of the recognition order from the date of July 29, 2016 previously ordered by Hourigan J.A., and to extend the time for Mr. Salomon to appeal the vesting order of August 5, 2016. It is not clear whether Mr. Salomon is treating the appeal from the vesting order as an entirely new appeal, but it is plain that the appeal of the vesting order rests on the vitality of the recognition order, which in turn awaits the decision of the Israeli court. Perhaps Mr. Salomon has only requested from me an extension in respect of the time to file the appeal of the vesting order in order to evade the obligation to provide security for costs as ordered by Juriansz J.A. But undeniably both appeals would need to be before the same panel as a consolidated appeal for Mr. Salomon to be successful.

[14] I am obliged to consider the following factors in exercising discretion to extend the time for perfecting the first appeal on the recognition order and for filing a notice of appeal respecting the vesting order out of time:

• whether the applicant had a bona fide intention to appeal before the expiration of the appeal period;

• any explanation for the delay in filing;

• any prejudice to the responding party caused by the delay; and

• the justice of the case including the merits of the proposed appeal.

See Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 4.

[15] I will deal with the appeals in tandem. In respect of the first factor, I am in no position to assess Mr. Salomon’s initial intention to appeal the recognition order, given the decision by Hourigan J.A. to extend the time within which he could perfect it. I note, however, that Mr. Salomon did not perfect the appeal on a timely basis, provide security for costs, or pay outstanding cost orders. He provides no explanation for his failure to do so.

[16] It is quite plain that Mr. Salomon intended to appeal the vesting order before the expiration of the appeal period. He moved quickly to extend the time.

[17] As to prejudice, Ms. Refaeli argues that she took steps relying on both the recognition order and the vesting order to discharge encumbrances on the property. Further, the vesting order has been registered on the property. Relying on Re Regal Constellation Hotel Ltd. (2004), 2004 ONCA 206, 71 O.R. (3d) 355 (C.A.), she contends that by being registered on the property the attributes of the vesting order as an order have been spent, which means that Mr. Salomon’s appeal is now moot. I do not view the law as quite so absolute, especially in the absence of the interests of any innocent third party, the existence of appeal rights, and the existence of the reconsideration possibility based on r. 59.06 of the Rules of Civil Procedure, where it applies. However, I do not need to determine this question to decide the motion.

[18] As for the justice of the case, I agree with Hourigan J.A. that there might be something to the appeals based on the Israeli proceedings. There is an outstanding recognition order. However, there is no final order of an Israeli court disposing of Mr. Salomon’s challenge to the Israeli order that Diamond J. recognized and on which the Israeli court has placed an interim stay.

[19] However, I am especially troubled by Mr. Salomon’s utter disregard of the Rules of Civil Procedure and orders of this court. Put bluntly, he wants to keep the appeal ball rolling without any personal investment. He acknowledges in his material that he was granted an extension to file an appeal of the recognition order, but does not explain why he failed to perfect the appeal on time, pay the security for costs order, or pay the outstanding costs awards. I infer he thought he could avoid those obligations by simply moving to extend the time to appeal the vesting order but that will not avail.

[20] Because Mr. Salomon’s actions in this court have been abusive of this court’s indulgences and orders, I assess the justice of the case to be in Ms. Refaeli’s favour.

[21] In summary, while Mr. Salomon might have had a bona fide intention to appeal the recognition order before the expiration of the appeal period and did have an intention to appeal the vesting order, he has provided no explanation for his later delay in perfecting the recognition appeal. There is some evidence of prejudice to Ms. Refaeli caused by his delay. The justice of the case favours Ms. Refaeli.

[22] For these reasons I dismiss Mr. Salomon’s motion and fix costs in the amount of $5,000, inclusive of disbursements and applicable taxes, payable by Mr. Salomon to Ms. Refaeli within 30 days of the date of this order. In light of this order, I need not address Ms. Refaeli’s alternative request for security for costs, which I dismiss as redundant.

“P. Lauwers J.A.”