Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220308 DOCKET: M53119 (C65591)

Fairburn A.C.J.O., Trotter and Thorburn JJ.A.

BETWEEN

Musharraf Iqbal Applicant (Appellant/Moving Party)

and

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

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

Heard: March 4, 2022 by video conference

Reasons for Decision

[1] The applicant brought a motion for an order extending the time to pursue a motion to set aside the order of Coroza J.A., dated August 13, 2020. Coroza J.A. had refused a request for an extension of time to bring a motion for leave to appeal two costs orders. On December 22, 2021, Tulloch J.A. dismissed the motion for an extension of time. The applicant now seeks a review of Tulloch’s J.A.’s order and asks that it be set aside.

[2] The decision on an application to extend time is a discretionary one and owed deference: Machado v. Ontario Hockey Association, 2019 ONCA 210, at para. 9. Therefore, a panel review of that decision is not a de novo hearing, but one that focusses upon whether the motion judge’s decision reflects legal error or a misapprehension of material evidence. The applicant seeks to set aside Tulloch J.A.’s decision on both these bases.

[3] First, the applicant says that the impugned decision contains an error in principle in relation to the finding of prejudice. We do not agree. Read as a whole, the reasons do not suggest that prejudice was found solely on the basis that the respondents would incur legal expense were the matter allowed to proceed. In our view, the impugned reasons make clear that the prejudice is much wider in nature, including that, given the very lengthy delay at this point, it would be difficult for the respondents to meaningfully respond. This was a discretionary conclusion available to Tulloch J.A.

[4] Second, the applicant suggests that Tulloch J.A. misapprehended the material evidence in relation to the merits of the appeal. The applicant says that Tulloch J.A. did not appreciate a piece of evidence establishing that the arbitrator refused to intervene because the arbitrator believed that he did not have jurisdiction to determine the issue of costs.

[5] We see no error in Tulloch J.A.’s understanding of the record. As is clear from that record, the arbitrator made an award of costs based on the information that was placed before him at the time. The arbitrator simply noted that, after he issued his order based on the information available to him at that time and the requests made by the applicant for costs, it was no longer open to the arbitrator to consider another costs request. Accordingly, Tulloch J.A. did not misapprehend the evidence when he arrived at the conclusion that the applicant had only claimed for damages, “without factoring in the entire costs of the proceedings.”

[6] As Tulloch J.A. did not make a legal error or misapprehend the evidence, the application to review the decision arising from this single judge motion is dismissed. The dismissal of the application arising from the Tulloch J.A. decision is necessarily dispositive of the attempt to have the decision of Coroza J.A. reviewed.

“Fairburn A.C.J.O.”

“G.T. Trotter J.A.”

“J.A. Thorburn J.A.”