Court File and Parties

Court of Appeal for Ontario Date: 20210616 Docket: M52539

Before: Brown J.A. (Motions Judge)

Between: 2650971 Ontario Inc. and Kouraj Rahimi-Aloughareh a.k.a. Cyrus Rahimi Applicants (Responding Parties)

And: Durim Shameti and Anila Shameti Respondents (Moving Parties)

Counsel: Harneet Singh and Obaidul Hoque, for the moving parties Michael A. Katzman, for the responding parties

Heard: June 15, 2021 by video conference

Endorsement

[1] The applicants, Durim Shameti and Anila Shameti, seek an extension of time to file a notice of appeal from the order of Steele J. dated April 5, 2021. On May 11, 2021 – six days after the rules required the delivery of a notice of appeal – counsel for the moving parties informed counsel for the respondents, 2650971 Ontario Inc. and Mr. Kouraj Rahimi-Aloughareh a.k.a. Cyrus Rahimi, that his clients intended to appeal and sought their consent to a late filing of the notice of appeal. The respondents refused, thus prompting this motion for an extension.

[2] The overarching principle is that an extension should be granted if the justice of the case requires. Four factors usually are considered as part of that determination.

[3] The moving parties took certain steps during the 30-day period to determine whether they should appeal the order, including consulting counsel, obtaining an appraisal of the property in dispute, and trying to engage the respondents in a discussion of the appraisal. While the moving parties did not instruct their counsel to initiate an appeal until May 11, I am satisfied that their conduct, when assessed as a whole, indicates that they were strongly contemplating an appeal within the 30-day period. In the circumstances, that satisfies the requirement that they formed an intention to appeal within the relevant period.

[4] As well, those steps were reasonable in the circumstances and provide an adequate explanation for their delay which was quite short.

[5] As to the merits of the appeal, I cannot conclude that the appeal has so little merit that the court could reasonably deny the important right of an appeal: Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 10; Duca Community Credit Union Limited v. Giovannoli (2001), 142 O.A.C. 146 (C.A.), at para. 15. While the record strongly suggests that the responding parties will obtain some form of remedy given the significant contribution to the down payment made by Mr. Rahimi, the moving parties’ notice of appeal raises arguable issues about the effect of agreements amongst the parties on the matter of who held beneficial interests in the property – 2650971 Ontario Inc. or Mr. Rahimi.

[6] Further, I see no prejudice to the respondents in granting an extension of time. The trial judge ordered that the property be sold pursuant to the Partition Act, R.S.O. 1990, c. P.4, and r. 66 of the Rules of Civil Procedure and she directed a reference to a Master to determine the terms and procedure for the sale, supervise the sale, and settle the accounts between the parties. That order is not subject to the automatic stay in r. 63.01(1). As well, the moving parties are prepared to perfect their appeal by July 15, 2021.

[7] Considering these factors in light of the overarching principle of the justice of the case, I conclude that the moving parties are entitled to an extension of time in which to file a notice of appeal, on strict terms. Accordingly, I make the following orders:

(i) the moving parties are granted leave to file their notice of appeal no later than Monday, June 21, 2021. If they fail to do so, the Registrar shall not accept any notice of appeal the moving parties attempt to file;

(ii) the moving parties shall perfect their appeal no later than July 15, 2021. If they fail to do so, the Registrar shall dismiss their appeal; and

(iii) if the appeal is perfected within the stipulated time, the hearing of the appeal shall be expedited, with the date of the hearing being the first date available to the respondents. The hearing date, once set, shall be peremptory to the moving parties.

[8] The moving parties do not seek costs of this motion. However, the responding parties seek costs of $5,071.44. While cost awards to unsuccessful parties on a motion are not common, the special circumstances of this motion merit such an award. The moving parties’ motion materials were woefully deficient, lacking copies of the reasons of the motion judge and the draft notice of appeal. The respondents filed a responding motion record that plugged these gaps in the evidentiary record and was of great assistance to the court. As a result, the respondents are entitled to their partial indemnity costs in the amount of $5,071.44.

[9] I make the following orders regarding the payment of costs:

(i) the moving parties shall pay the respondents their costs of $5,071.44 no later than 5 p.m. on Tuesday, June 22, 2021;

(ii) the moving parties shall serve and file with this court proof of such payment no later than 12 noon on Wednesday, June 23, 2021. If the moving parties fail to do so, the Registrar shall dismiss their appeal forthwith.

“David Brown J.A.”