Court of Appeal for Ontario

Date: 2019-02-14 Docket: C65591

Judges: Pepall, Trotter and Harvison Young JJ.A.

Between

Musharraf Iqbal Applicant (Appellant)

and

Sohail Khawaja Mansoor and Gold International Inc. Respondents (Respondents)

Counsel

Musharraf Iqbal, acting in person

Paul Mand, for the respondents

Heard and released orally: February 8, 2019

On appeal from the order of Justice Gregory M. Mulligan of the Superior Court of Justice, dated June 22, 2018, with reasons reported at 2018 ONSC 3949.

Reasons for Decision

[1] The appellant commenced an action against the respondent for, among other things, damages of approximately $313,000 for breach of an agreement relating to the development of a property.

[2] Pursuant to a consent order, the action was referred to arbitration. In that order, no provision was made for costs. On January 25, 2017, the arbitrator found in favour of the appellant and awarded him damages of $255,431. He invited submissions on costs and subsequently awarded the appellant costs of $20,000.

[3] The respondent sought leave to appeal the award of the arbitrator and the appellant brought a cross-application to confirm the award pursuant to the provisions of the Arbitration Act, 1991, S.O. 1991, c. 17.

[4] On February 5, 2018, the respondent's application for leave was dismissed and the appellant's application for confirmation was granted: Mansoor v. Iqbal, 2018 ONSC 884. The applications judge then invited submissions on costs. The appellant claimed just over $100,000, largely for costs leading up to and including the arbitration.

[5] On March 4, 2018, the applications judge rejected that request, stating that the costs up to and including the arbitration had already been accounted for by the arbitrator whose decision had been confirmed. However, the applications judge did award the appellant costs of $2,500 for the leave and confirmation motions.

[6] The appellant then commenced a new application again seeking costs of just over $100,000.

[7] On June 22, 2018, the application judge dismissed the new application on the basis that it was in essence an attempt to do indirectly what the appellant had been unable to do directly. The application judge had already dealt with the issue of costs associated with the parties' dispute that was subject to arbitration in the March 4, 2018 order. He also refused to consider the appellant's fresh evidence in the form of an email from the arbitrator stating that he had made his decision on costs, had no further jurisdiction, and could not award costs for any efforts prior to the arbitration or for the appeal. The application judge noted that this evidence could have been available when he had heard the earlier submissions as to costs made by the appellant. The application judge awarded $2,500 in costs to the respondent.

[8] In dismissing the application, contrary to the submissions of the appellant, the application judge was not hearing an appeal of his prior order. There was no reason for him not to hear the June 22, 2018 new application.

[9] The appellant subsequently filed a notice of appeal of the application judge's June 22, 2018 order to this court. He asked that the order be set aside and that the costs award he was requesting be granted. He did not seek to appeal the March 4, 2018 order and had already obtained an order confirming the arbitrator's award that addressed costs.

[10] On October 11, 2018, this court's Senior Legal Officer wrote to the appellant advising that his appeal seemed to be only as to costs and leave to appeal must be granted before the appeal could proceed. The appellant disagreed. He did not seek leave to appeal, and has proceeded with his appeal.

[11] In our view, the appellant was in error. An appeal of a costs decision requires leave. In spite of being advised of this deficiency, the appellant chose to proceed. In the absence of leave, this court has no jurisdiction and the appeal is quashed.

[12] The appellant is to pay the respondent costs of the proceedings in this court fixed in the amount of $2,500, inclusive of disbursements and applicable tax.

"S.E. Pepall J.A."

"G.T. Trotter J.A."

"Harvison Young J.A."