Court of Appeal for Ontario

Date: 2017-12-06

Docket: M46891 (C62026)

Judges: Watt, Pepall and Miller JJ.A.

Between

George Samra Plaintiff/Respondent

and

7544405 Canada Inc. and Stella Chinyere Kemdirim Defendants/Appellants

Counsel:

• Stella Kemdirim, acting in person
• Miriam Vale Peters, for the respondent

Heard: October 27, 2017

Reasons for Decision

[1] Ms. Kemdirim and 7544405 Canada Inc. ("Kemdirim and 7544405") seek to review the order of Roberts J.A. refusing to extend the time to file their earlier motion to review and set aside the July 20, 2016 order of Laforme J.A., and to grant a stay of his order and the summary judgment granted by Warkentin J. on March 14, 2016.

[2] The genesis of these proceedings is the default of Kemdirim and 7544405 under two mortgages placed on several properties. George Samra obtained summary judgment against Kemdirim and 7544405 due to their default under the mortgages. He was also awarded costs fixed at $17,000 inclusive of HST and disbursements.

[3] Kemdirim and 7544405 appealed.

[4] Samra moved before Laforme J.A. for an order for security for costs. He granted the order, which required Kemdirim and 7544405 to pay $37,000 into court as security for costs within 30 days, failing which their appeal of the summary judgment would be dismissed. He also ordered Kemdirim and 7544405 to pay Samra his costs of the motion fixed at $3,500 inclusive of HST and disbursements.

[5] Kemdirim and 7544405 subsequently moved before Roberts J.A. seeking an order to extend the time within which they could serve and file a motion to review the order of Laforme J.A., a stay of that order, and a stay of the summary judgment.

[6] Roberts J.A. granted an extension of time to August 29, 2016 to post security and dismissed the remainder of the motion.

[7] Kemdirim and 7544405 have not yet made any payments towards the order for security for costs or any costs orders made in any of the prior proceedings.

[8] Despite Ms. Kemdirim's earnest submissions on behalf of herself and 7544405, we see no basis upon which we should grant the orders sought.

[9] To begin, Kemdirim and 7544405 admit default under the mortgages, although they query the precise amounts of the default. The evidence before the judge on the motion for summary judgment revealed no genuine issue requiring a trial. The reasons for judgment on that motion reveal no basis upon which a reviewing court could interfere.

[10] Prior to the appearance before Laforme J.A., the Registrar administratively dismissed the appeal by Kemdirim and 7544405 from the summary judgment for failure to perfect it in accordance with the rules. Kemdirim and 7544405 moved before Laforme J.A. to set aside the administrative dismissal and stay the summary judgment pending appeal. It was in response to this motion that Samra sought and obtained an order for security for costs.

[11] Laforme J.A. restored the appeal but ordered security for costs because he was of the view that the appeal was without merit and that Kemdirim and 7544405, already in default under the mortgages, lacked the means to pay the costs of an unsuccessful appeal. Kemdirim and 7544405 have been unable to persuade us that this decision is cumbered by error.

[12] Roberts J.A., whose order refusing an extension of time Kemdirim and 7544405 ask us to review, dismissed the motion on two grounds. The first, echoing what the first chambers judge said, was that the appeal was wholly without merit, thus frivolous and vexatious. The second was that the justice of the case did not warrant the order sought. In refusing the extension of time sought, Roberts J.A. enumerated the relevant factors that informed her decision. She acknowledged that Kemdirim and 7544405 had intended to seek a review of the order within the required time; that the delay was brief and that the delay was adequately explained. Then she focused on the justice of the case. Her consideration of this factor reveals no legal error, no misapprehension of relevant evidence and is plainly reasonable. We see no basis on which to interfere.

[13] It followed that the request for the stay of the security for costs order was moot. Roberts J.A. then correctly considered and applied the principles applicable to the granting of a stay of Warkentin J.'s summary judgment. Again, we see no basis on which to interfere.

[14] The motion to review the order of the second chambers judge is dismissed with costs of $3,000, inclusive of disbursements and all applicable taxes, payable to Samra within 30 days of the release of this decision.

David Watt J.A. S.E. Pepall J.A. B.W. Miller J.A.