Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2024-04-17 Docket: COA-24-OM-0060

Before: Roberts J.A. (Motion Judge)

Between: Attorney General of Ontario and $38,570 in Canadian Currency (In Rem)

Counsel: Jamal Mohamed, acting in person/moving party James Coristine, for the responding party

Heard: April 15, 2024

Endorsement

[1] Mr. Mohamed seeks an extension of time to appeal the June 19, 2023 forfeiture order made by the application judge under the Civil Remedies Act, 2001, S.O. 2001, c. 28. The application judge ordered that the amount of $38,570 that was seized by the police from a safety deposit box be forfeited to the Crown and that Mr. Mohamed pay costs of the application in the amount of $9,696.83.

[2] The onus is on Mr. Mohamed to show that the court’s discretion should be exercised to grant the requested extension. I am not persuaded that Mr. Mohamed satisfies the well-established criteria that inform whether the “justice of the case” warrants the extension, including: a timely intention to appeal; the length of and explanation for the delay; prejudice to the responding party; and the merits of the proposed appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.

[3] Mr. Mohamed has filed no affidavit evidence attesting to his timely intention to appeal the June 19, 2023 order nor explaining his more than seven-month delay in seeking to do so. Without more, the mere fact of his incarceration from September 3, 2019 to March 19, 2024 does not provide an adequate explanation. It did not impede his counsel responding to the Attorney General’s application, including the preparation and filing of Mr. Mohamed’s affidavit.

[4] While there is no particular prejudice alleged by the Attorney General, in considering the justice of the case, I note the prejudice generally to the administration of justice, which favours the timely adjudication of matters and the principle of finality.

[5] Importantly, there is no apparent merit to Mr. Mohamed’s proposed appeal. Lack of merit alone can be a sufficient basis on which to deny an extension of time: Enbridge, at para. 16; Nguyen v. Economical Mutual Insurance Co., 2015 ONCA 828, at para. 13; Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116, at para. 7; and Philbert v. Graham, 2022 ONCA 122, at para. 16. I come to this conclusion having recognized that the bar is relatively low, and my role on this motion is not to determine the merits of the appeal but to assess the strength of the grounds of appeal for the purpose of determining whether the appeal has so little merit that Mr. Mohamed should, in all the circumstances of this case, be deprived of his important right of appeal: Duca Community Credit Union Ltd. v. Giovannoli (2001), 142 O.A.C. 146 (C.A.), at para. 14; and Nguyen, at para. 13. As I shall explain, this is such a case.

[6] With respect to the grounds of appeal, Mr. Mohamed argues that his former counsel attended the hearing of the application without his consent or knowledge and that his former counsel neglected to put forward documentation and evidence of witnesses that Mr. Mohamed alleges would have proven the legitimacy of the funds in his safety deposit box. Mr. Mohamed filed no evidence supporting his allegations, including the alleged documents, and did not provide a transcript of the application judge’s judgment setting out the reasons for the forfeiture order.

[7] Apart from the absence of any evidentiary basis put forward on this motion to support his assertions, Mr. Mohamed’s allegations are undercut by the materials that were before the application judge. Specifically, the filing of the notice of appearance and Mr. Mohamed’s own affidavit, dated February 24, 2023, belie the suggestion that his former counsel appeared without his authority or knowledge. Further, I am not persuaded that any new evidence would have emerged from the alleged documents and witnesses that was not already contained in his affidavit, which was already before the application judge. In any event, without the benefit of the reasons for decision, I cannot conclude that the addition of these documents and witnesses’ evidence could have materially affected the outcome of the application.

[8] Finally, Mr. Mohamed does not point to any reversible error in the application judge’s decision. This is understandable as the application judge’s full reasons for decision were given orally, and they have not yet been transcribed. Nevertheless, on the basis of the record that was before the application judge, no reversible error is apparent.

[9] Having weighed all of the relevant factors and taken a step back to consider the justice of the case, I see no basis to exercise my discretion to grant the requested extension. Accordingly, I dismiss Mr. Mohamed’s motion for an extension of time to appeal. In the circumstances, I order that there be no costs of this motion.

“L.B. Roberts J.A.”