Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211222 DOCKET: M52934 (C65591)

Tulloch J.A. (Motion Judge)

BETWEEN

Musharraf Iqbal Plaintiff (Appellant/Moving Party)

and

Sohail Khawaja Mansoor and Gold International Inc. Defendants (Respondents/Responding Parties)

Musharraf Iqbal, acting in person No one appearing for the responding parties

Heard: November 22, 2021 by video conference

Reasons for Decision

[1] The applicant, Musharraf Iqbal, brings this motion pursuant to r. 3.02(2) of the Rules of Civil Procedure, R.R.O 1990, Reg. 194. The applicant seeks an order for an extension of time to pursue a motion to set aside the order of Coroza J.A., dated August 13, 2020, under s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43. In his decision, Justice Coroza declined to grant the applicant an extension of time to seek leave to appeal from two costs decisions, which were made in the Superior Court of Justice in 2018.

[2] Pursuant to r. 61.16 of the Rules of Civil Procedure, the time to bring such a motion is within four days of the order. The appellant submits that the delay in bringing this motion to set aside the order of Coroza J.A. was mostly as a result of his ignorance of the proper procedures to follow. He also submits that he mistakenly believed the COVID-19 suspension was still in place, and that he tried to retain a lawyer who was ultimately of no assistance.

[3] The respondents have not submitted any responding materials, nor has anyone appeared on their behalf to oppose the motion.

Background

[4] The parties went through proceedings before an arbitrator in which the applicant was successful. He was awarded costs of the arbitration hearing but the arbitrator did not make a costs order for the proceedings prior to the actual hearing. The total costs to the applicant for the proceedings amounted to $109,817.

[5] Following the arbitrator’s decision, the respondents commenced an application in the Superior Court, in which they sought an order granting them leave to appeal from the decision of the arbitrator. In response, the applicant commenced a counter-application seeking an order upholding the arbitrator’s decision. In February 2018, the application judge dismissed the respondents’ application and granted the applicant’s counter-application.

[6] The applicant made costs submissions before the application judge and asked for a total of $109,817 in costs for the proceedings, indicating to the court that the arbitrator had not addressed the issue of the costs of the proceedings, but had only awarded costs for the actual hearing.

[7] The application judge declined to award the applicant his full arbitration costs in the amount of $109,817, finding that the costs award he had been granted by the arbitrator covered the entire proceeding. Upon obtaining confirmation from the arbitrator’s office that the costs award was not in fact for the entire proceeding but only for the arbitration hearing, the applicant brought a motion for the remaining $109,817 in costs. The application judge determined that the applicant sought to appeal his earlier refusal of costs and that he therefore lacked jurisdiction; the motion was dismissed.

[8] The applicant then tried to appeal the application judge’s decision to this court, but because he had not first obtained leave, the court lacked jurisdiction. The panel noted that it was an error for the application judge to find that he did not have jurisdiction to hear the motion. The applicant then tried to seek leave from the Supreme Court of Canada, which was dismissed. The applicant also tried to seek leave to appeal in the Superior Court, but the application was dismissed for lack of jurisdiction. The applicant subsequently brought a motion before this court for an extension of time to bring a motion for leave to appeal the costs order, which was heard before Coroza J.A. and dismissed.

Analysis

[9] The overarching principle when considering a motion for an extension of time is that an extension should be granted if the “justice of the case” requires it: Frey v. McDonald (1989), 33 C.P.C. (2d) 13 (Ont. C.A.).

[10] The relevant factors were set out in Kefeli v. Centennial College of Applied Arts and Technology, 2002 ONCA 45008, at para. 14:

1. The length of and explanation for the delay;
2. Whether the respondent will suffer prejudice;
3. The merits of the appeal; and
4. Whether the justice of the case requires it.

[11] As stated earlier, the applicant wanted to move to set aside Coroza J.A.’s decision but failed to do so within the prescribed period because he mistakenly believed the COVID-19 suspension was still in place. He also tried to retain a lawyer who was ultimately of no assistance.

[12] The applicant argues that the proposed appeal has merit, that the respondents will not suffer any prejudice, and that an extension of time is in the interests of justice. On the merits, he argues that the finding that the costs award he was granted covered the entire proceedings was clearly wrong, in light of the confirmation from the arbitrator’s office. With respect to the application judge’s finding that he did not have jurisdiction to hear the motion after this information was discovered, our court determined that this was also an error. There is no prejudice to the respondents in the sense that witnesses cannot be called or evidence has been destroyed. It is in the interests of justice to have the $109,817 costs issue determined on its merits.

[13] From the recent history of this litigation, I have no doubt that the applicant had every intention to appeal the decision of Coroza J.A. Unfortunately, it took over a year to do so. Accepting his explanation for the delay, I still must consider whether the respondents will suffer any prejudice, whether there is any merit to an appeal, and if so, whether the justice of the case warrants granting the extension.

[14] There is no doubt that if an extension was granted, the respondents would suffer prejudice. The respondents are no longer represented by counsel. A significant amount of time has elapsed since Justice Coroza’s decision was rendered. Should an extension be granted, the respondents would now have to turn their minds to responding again to the applicant, thus incurring more costs.

[15] When it comes to the merits of the appeal, this is a case in which the parties elected to proceed by way of arbitration. During the arbitration process, both parties were obliged to put their entire claim before the arbitrator, including all the relevant costs. For whatever reasons, the applicant neglected to do so, and instead claimed only for his damages, without factoring in the entire costs of the proceedings. The decision of both parties to opt out of the court process and to proceed before an arbitrator entailed that the entire claim, including the costs of the proceedings, would be placed before the arbitrator. Once an arbitrator decides the outcome, the matter is no longer within the jurisdiction of the court, provided there was no legal or procedural errors.

[16] In all the circumstances, I am of the view that even if an extension of time was granted, the applicant’s case lacks sufficient justification to grant an extension of time. In my view, notwithstanding the submissions of the applicant, the justice of the case does not warrant this court exercising its discretion to grant the extension of time to serve the notice of leave to appeal.

[17] Accordingly, the motion is dismissed.

“M. Tulloch J.A.”