Court of Appeal for Ontario

CITATION: Mishev v. Shah, 2016 ONCA 911

DATE: 20161201

DOCKET: C59872

Sharpe, van Rensburg and Pardu JJ.A.

BETWEEN

Ivan Mishev, Margarita Platov, Borislav Mishev and Paul Kimber

(Appellant/Plaintiffs)

and

Yogesh Shah, Rita Shah, Kemit Investments Ltd., 909575 Ontario Ltd., 2033447 Ontario Ltd., 401 Meadow Holdings Ltd., 1039350 Ontario Ltd., JSM Group, YSM Group, Suresh Shah, Chiman Mistry, Surya Kant Shah, Kandavel Palantivel and Bharati Shah

(Respondents/Defendants)

Ivan Mishev, acting in person

Patrick T. Summers, for the respondents

Heard and released orally: November 25, 2016

On appeal from the judgment of Justice J. Patrick Moore of the Superior Court of Justice, dated December 15, 2014.

ENDORSEMENT

[1] The appellant asked the court to adjourn this appeal so that he might obtain the assistance of counsel who is ill. The date for the appeal was set in July 2016. There is a history of delay and no reasonable prospect the appellant will have counsel to argue the appeal. The adjournment was therefore refused.

[2] We note that the appellant was represented by experienced counsel at trial. Many of the complaints he makes relate to the alleged inadequacy of counsel’s assistance but there is no record to support those allegations.

[3] The appeal does not raise any reviewable error of law or principle or any palpable or overriding error of fact. Essentially, the appellant, while putting forward in some instances facts and evidence that were not before the trial judge, disagrees with the result at trial. The trial judge addressed the issues and preferred the evidence of the respondent Yogesh Shah over that of the appellant. He concluded that, despite the various concerns raised by the appellant, the appellant dealt with Shah over a number of years and that his claims were statute-barred. There is no error here.

[4] As for the counterclaim, the trial judge accepted the amount outstanding under the mortgage calculated in the expert report submitted at trial, and rejected the appellant’s claim that he made other payments. There is no basis for us to interfere in that finding or the other factual findings.

[5] The appeal is therefore dismissed. Costs payable by the appellant to the respondents fixed at $5,000 inclusive of taxes and disbursements.

“Robert J. Sharpe J.A.”

“K. van Rensburg J.A.”

“G. Pardu J.A.”