Court of Appeal for Ontario

Date: May 8, 2018 Docket: M48427 (M48292)

Judges: LaForme, Watt and Nordheimer JJ.A.

Between

Omar Farooq Kalair Plaintiff (Appellant/Moving Party)

and

Central 1 Credit Union and UM Financial Inc. Defendants (Respondent/Responding Party)

Counsel

Kenneth E. Wise, for the moving party

Doug Smith and Alannah Fotheringham, for the responding party

Heard: May 4, 2018

Decision

By the Court:

[1] Mr. Kalair's motion for an extension of time to file a notice of appeal – which he had missed by 2 weeks - was dismissed by Roberts J.A. on October 11, 2017. Justice Roberts was satisfied that Mr. Kalair had formed the requisite intention to appeal, provided an adequate explanation for the short delay, and there was no prejudice occasioned to the respondent from the delay. However, she concluded that Mr. Kalair had failed to meet "the admittedly low threshold of demonstrating that there was some merit to the proposed appeal such that the court should not reasonably deny the important right of appeal".

[2] Pursuant to s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, Mr. Kalair moved before this court to review the decision of Roberts J.A. and set aside her order or vary it. As additional support for this review, and by way of an affidavit dated April 26, 2018 contained in a supplementary motion record filed April 27, 2018, Mr. Kalair outlines proposed merits of the appeal that were not before Roberts J.A.

[3] At the outset, the respondent, in very brief submissions, objected to the April 26th affidavit being considered on this review, arguing it was fresh evidence improperly before us. We heard full argument from Mr. Kalair's current counsel on both the issue of the alleged fresh evidence and on the merits of the review. We dismissed his motion for review and advised that reasons would follow. These are the reasons.

[4] Mr. Kalair's original position on the merits of his appeal described in his original affidavit dated November 17, 2017 that Roberts J.A. considered were that:

[T]he grounds for appeal essentially are based on the severely lacking evidence that was before [the motion judge]. Had that evidence been properly produced the outcome of my case would likely have been different.

[5] In Mr. Kalair's April 26th affidavit he provides particulars of "merits of the appeal that were not before Roberts J.A.". In the affidavit he claims that "much of the legal merits of [his] appeal were not known to [him] and [his] new counsel until more recently when [his] previous counsel provided information and parts of the file".

[6] A full panel of this court owes considerable deference to a chambers judge's decision regarding whether to grant an extension of time: R. v. Gatfield, 2016 ONCA 23, at para. 11.

[7] The conclusory statements in the affidavit before Roberts J.A. do not support the argument that she may have made an error in dismissing Mr. Kalair's motion. To the contrary, Roberts J.A. addressed all the relevant factors and properly applied those factors to the evidentiary record before her. In particular, she concluded there was no merit to the appeal. We agree.

[8] The findings on the summary judgment motion that the applicable limitations period had expired, and that Mr. Kalair did not have standing to advance claims on behalf of his companies, are unassailable. His complaints, on his proposed appeal, about undertakings and refusals not being answered, and that his motion to amend the statement of claim to add the Receiver was not heard, are of no consequence to these two central findings.

[9] The end result is that Mr. Kalair has failed to provide us with any reason why we should interfere with the exercise of discretion by Roberts J.A. His most recent affidavit filed on this motion, aside from its propriety, does not assist him; it too fails to demonstrate that there is any merit to his proposed appeal.

[10] Mr. Kalair's motion for review is therefore dismissed. The respondent is awarded costs of this motion fixed in the amount of $5,000 inclusive of disbursements and HST.

Released: May 8, 2018

"H.S. LaForme J.A."

"David Watt J.A."

"I.V.B. Nordheimer J.A."