COURT OF APPEAL FOR ONTARIO

CITATION: Royal Canadian Mortgage Investment Corporation v. 1835923 Ontario Ltd., 2020 ONCA 45

DATE: 20200115

DOCKET: C66207

Hoy A.C.J.O. (In Chambers)

BETWEEN

Royal Canadian Mortgage Investment Corporation

Plaintiff (Respondent)

and

1835923 Ontario Ltd. and Dudett A. Kumar

Defendants (Appellants)

Counsel:

Surinder Kumar, for the appellant 1835923 Ontario Ltd.

Amarnath Misir, proposed counsel for the appellant 1835923 Ontario Ltd., on a limited scope retainer

George Corsianos, for the respondent

Heard: by teleconference

ENDORSEMENT

[1] The appellants, 1835923 Ontario Limited ("183") and Dudett A. Kumar, appeal the judgment of the motion judge in the respondent Royal Canadian Mortgage Investment Corporation's mortgage enforcement action. The motion judge ordered the appellants to, among other things, pay the respondent $626,719.59 on account of principal money, fees and interest to October 30, 2018 under the mortgage and deliver possession of the mortgaged property to the respondent.

[2] The appeal is scheduled to be heard January 16, 2020. I am advised that Surinder Kumar is a director of 183 and represents the appellant 183 pursuant to an order of the Superior Court of Justice, and, in this court, with the consent of the respondent. He does not represent his wife, the appellant Dudett A. Kumar, who guaranteed the mortgage debt.

[3] These are my reasons for denying Mr. Kumar's request for an adjournment of the appeal on January 13, 2020, and the terms on which I ordered that the appeal proceed on January 16, 2020.

[4] As Harvison Young J.A. recounted in her reasons setting aside the registrar's dismissal for delay of this appeal, the appellants had requested and received two adjournments before the respondent's summary judgment motion was heard and decided on October 30, 2018. Their request for a further adjournment of the October 30, 2018 date was denied: (25 July 2019) M50643 (C66207) (Ont. C.A.), at para. 1. Their attendance before Harvison Young J.A. was the third time they had come before this court, seeking an extension of time to perfect their appeal: M50643, at para. 2.

[5] Harvison Young J.A. wrote as follows, at para. 8:

The explanations for the delay have been thin. In my view, a review of all the delays reveals that the appellants' conduct have [sic] been marked by a pattern of delay, failure to meet deadlines and repeated requests for adjournments. When considered as a whole, this pattern of delay leads inexorably to the conclusion that delay has been an integral part of the appellants' litigation strategy.

[6] She added that "it is difficult to see merit to the appeal, even appreciating that this is a low bar [on a motion for an extension of time]": at para. 10.

[7] However, she ordered that if the outstanding documents to perfect the appeal were filed no later than August 9, 2019, the registrar's dismissal for delay would be set aside. The appellants filed the outstanding documents, and the appeal was scheduled to be heard on January 16, 2020.

[8] On January 3, 2020, Mr. Kumar sought the consent of the respondent to an adjournment of the appeal until mid-March 2020. He wrote that over the holiday, he was diagnosed with a health issue related to his eyesight, and the vision in his left eye is now substantially compromised, likely as a complication due to diabetes. He advised that he would be unable to represent the appellants on January 16, 2020 because, due to severely compromised vision in his left eye, it would be impossible for him to adequately prepare, given the "voluminous" materials he would need to review.

[9] By letter dated January 6, 2020, the respondent opposed the appellants' request for an adjournment. Mr. Kumar then contacted the court office, requesting an adjournment. His request, and the communication between Mr. Kumar and the respondent, was forwarded to me, as the President of the panel scheduled to hear the appeal on January 16, 2020.

[10] The respondent had alluded to a Mr. Robert Maki, who, it says, appeared as agent for the appellants multiple times in this proceeding, both in this court and in the Superior Court of Justice, where he, among other things, argued the summary judgment motion. The respondent questioned why the appellant now stated that he needed time to find legal counsel when Mr. Maki had previously acted as the agent for the appellants. At my request, court staff scheduled a conference call with Mr. Kumar and Mr. Corsianos, counsel for the respondent. Mr. Kumar was asked to follow up with Mr. Maki before that call as to his availability to argue the appeal and as to what medical confirmation he could provide for the recent deterioration of his medical condition. Court staff subsequently requested that Mr. Maki be asked to participate in the conference call.

[11] The conference call was held on January 9, 2020. In advance of that call, Mr. Kumar deposed that Mr. Maki was not available on January 16, 2020 and provided a note from a doctor at a medical centre whom Mr. Kumar indicated is not his regular physician. The doctor's letter merely stated that Mr. Kumar was seen on January 8, 2020, is unwell, and will not be able to attend his January 16, 2020 court date. There is no reference in the doctor's letter to severely compromised vision in his left eye.

[12] In the context of this matter, including the pattern of delay, I was not satisfied with the medical note provided or Mr. Kumar's assertion that Mr. Maki was not available on January 16, 2020.

[13] I adjourned the conference call to Monday, January 13, 2020. I asked Mr. Kumar to provide medical confirmation that his eye prevented him from attending on January 16, 2020 and that Mr. Maki participate on the call on January 13, 2020 or that Mr. Kumar arrange for other counsel to participate.

[14] Before the call on January 13, 2020, I reviewed the materials filed for the appeal. I would not characterize the materials as voluminous. The appellants' factum is nine pages in length (ten, including the signature of Mr. Kumar). In my view, any counsel whom the appellants might retain on a limited scope retainer to make oral submissions based on the written materials filed would not require long to prepare.

[15] In advance of the call, Mr. Kumar supplied an email from Mr. Maki, who wrote that "I have never been on the record on this file, I'm not involved and do not know what is going on". Mr. Maki's email does not say that he is unable to assist on January 16, 2020. Mr. Kumar advised the court that a lawyer, Amarnath Misir, would participate in the call. Mr. Kumar also provided confirmation of an appointment on March 3, 2020 with a doctor whose letterhead refers to "Endocrinology & Metabolism". Again, there was no indication that his eyesight prevents him from reading documents.

[16] On the call, Mr. Misir advised he had been contacted on January 10, 2020, had not reviewed anything, was open to a limited scope retainer, but was not available for six to eight weeks. Mr. Misir was unaware of the history of delay in this matter.

[17] Mr. Kumar's ability to respond to requests for further information and participate in the conference calls did not appear to be affected. In the context of the pattern of delay in this matter and the lack of medical evidence supporting what Mr. Kumar indicated was the reason he cannot attend on January 16, 2020, I am of the view that this adjournment request is simply an attempt to delay enforcement of the mortgage.

[18] As a result, on January 13, 2020, I denied the adjournment. I ordered that if Mr. Kumar or an agent did not appear for 183, and Mrs. Kumar did not appear, on January 16, 2020, then the panel would hear the appeal, relying on the materials that have been filed by the parties, and, to ensure that the respondent was not perceived as having an advantage over the appellants, Mr. Corsianos would not be provided with an opportunity to make oral submissions. Mr. Corsianos was agreeable to this.

[19] I further advised that if the panel has any questions which are not addressed by the parties' written materials, then the panel would invite the parties to address those additional issues in writing. These terms ensure that the matter will be considered on its merits, by the full panel. In my view, the appellants will not be prejudiced if they do not make oral submissions. Further, in my view, in all the circumstances, this is a just disposition.

"Alexandra Hoy A.C.J.O."