COURT OF APPEAL FOR ONTARIO DATE: 20240716 DOCKET: M55091 (C70751)
Zarnett J.A. (Motion Judge)
BETWEEN
Tracy Clancy, Brent Schreckengost, Monica Plata, Fahrin Jaffer, Jamal Raza, Jacques Conand, Mosfiqur (Mo) Rahman, Mira McDaniel, Talie Dang-Lu, Nicole Ceranna, Philip Cooksey, Marianna Gurovich, Daniel Christopher Koloski, Alvie Bert Kraatz III, Michael Montgomery, Nicole Palmer, Mary Celeste (MC) Didone, David Lynn, Surya Panditi, Laura Leigh Schneider, Mari Sullivan, Meera Ganesh, Michael Remza, Javed Khan, Marjory Remy, Cassandra Long, Kirsten Hill, Ruba Borno, Paulo Cao, Bobby Nanda, Ruchi Echevarria, Michael Ginn, Felicia Glace, Robyn Matos/Holland, Angela Barnes Coolidge, Colin Kincaid, Maciej Kranz, Marc Aldrich, Karthik Subramanian, Heather Vickers, Stacie Torello Wilk, Mary Catherine Hudson, Chad Alan Trout, Kathleen Noonan, Shauna Daly, Kevan Blanco, Mirian Drummond, Cheyenne Deverna, Christine Feng, Dan Grossman, Aengus Linehan, Hilton Romanski, James Brian Doran
Plaintiffs (Respondents/Responding Parties)
and
Tanvir Farid a.k.a. Tanvir Islam
Defendant (Appellant/Moving Party)
Tanvir Farid, acting in person Maanit Zemel, for the responding parties
Heard: May 14, 2024
ENDORSEMENT
Overview
[1] In June 2022, the moving party, Tanvir Farid, filed a notice of appeal challenging a March 2022 summary judgment that found him liable for defamation and directed that damages be assessed at a subsequent hearing. Mr. Farid obtained an order from a judge of this court granting him an extension of the deadline to perfect his appeal on the basis that he would likely appeal the damages award when it was made. The judicially set deadline for perfection was to be 30 days after he received the reasons for decision on damages. Those reasons were released on June 27, 2023.
[2] Mr. Farid did not perfect his appeal and the responding parties obtained an order from the Registrar [1] dated March 15, 2024, dismissing the appeal for failure to comply with the judicial deadline. Mr. Farid now moves to set aside the dismissal order.
[3] Mr. Farid makes various arguments about the Registrar’s order, including that he did not miss the deadline for perfection when the deadline is properly interpreted. He also argues that it is in the interests of justice that his appeal be allowed to continue.
[4] I see no error in the Registrar’s interpretation of the judicial deadline that was set or the finding that the deadline was not complied with.
[5] The parties agree, however, that my jurisdiction on this motion is not limited to whether the Registrar’s order was correct. I can also set aside the dismissal if I determine that Mr. Farid has established a basis to extend the deadline for perfection. In my view he has not done so.
Background and Procedural Context
[6] In November 2017, the 53 responding parties commenced an action in the Superior Court of Justice against Mr. Farid alleging online defamation. In 2021 Ramsay J. heard a motion by the responding parties for summary judgment. She summarized their central contention as follows:
The [responding parties] all contend that for over a decade, Mr. Farid has engaged in a malicious campaign to cyberbully, cyber-harass and defame them by the publication of salacious or defamatory postings on various webpages. The postings refer to the [responding parties] as prostitutes, escorts, pedophiles, child molesters, registered sex offenders, rapists, and adulteress escorts, and state that the [responding parties] have sexually assaulted or harassed others, have sexually transmitted diseases, commit adultery, are engaged in criminal activities, are sexually promiscuous, have engaged in fraud and/or misappropriation, and are racist, homophobic, and xenophobic.
[7] By reasons released March 4, 2022, Ramsay J. granted summary judgment in favour of the responding parties, determining that:
i. the impugned postings were defamatory;
ii. Mr. Farid was responsible for making the postings on the internet;
iii. the responding parties’ claims were not statute barred; and
iv. there should be a trial of the issue of the amounts to which the responding parties were entitled, of which Ramsay J. would remain seized.
[8] By the same reasons, Ramsay J. dismissed requests by the responding parties (i) to hold Mr. Farid in contempt based on an allegation he had breached an Anton Piller Order, and (ii) for permanent injunctive relief and mandatory orders. Ramsay J. noted that she was dismissing these requests without prejudice to the responding parties renewing them.
[9] On June 13, 2022, Mr. Farid filed a notice of appeal to this court from Ramsay J.’s “Order and Decision dated March 4, 2022”. In the notice of appeal he indicated that he did not wish to appeal the finding that the impugned posts were defamatory, but was challenging the findings of liability with respect to authorship of the defamatory posts and that the claims were not statute barred.
[10] Mr. Farid moved before Thorburn J.A. for an extension of time to perfect his appeal from the March 4, 2022 summary judgment, indicating that he might also appeal the judgment emanating from the yet-to-be-held trial of the damages issue. Thorburn J.A. noted that the responding parties had justifiable concerns about the ongoing harm to their reputations arising from the impugned posts and the need for finality. But she also noted that “since [Mr. Farid] had indicated that he will likely appeal both judgments on liability and damages to this court, the same panel should hear the appeals together as they emanate from the same action”, thereby avoiding a multiplicity of proceedings and complications to the appeal process.
[11] Balancing those matters, Thorburn J.A. ordered a specific extension of the time to perfect and set a deadline for that to happen:
I will extend the time for [Mr. Farid] to perfect his appeal and take any steps he wishes to amend his Notice of Appeal on condition that perfection of the appeal in respect of both liability and damages must be completed within thirty days of receipt of the motion judge’s decision on damages. ([Mr. Farid] has advised that he has had ongoing communication with pro bono counsel to perfect his appeal on liability.)
For greater certainty, upon receipt of the reasons for damages, [Mr. Farid] will have thirty days to perfect his appeal on liability and damages.
It is hoped that this strict timeline will enable the applicant to perfect his appeal on liability and damages, have one panel hear the appeal of both, and provide some finality to the respondents who are understandably concerned to obtain finality within a reasonable time. [Emphasis added.]
[12] Ramsay J. heard the damages issue, and a renewed request by the responding parties for injunctive relief and mandatory orders, on November 18, 2022. In reasons released June 27, 2023, she described the matters before her as including the responding parties' damages claims and various other requests which she itemized. The additional requests included orders:
i. requiring Mr. Farid to remove the defamatory statements from the Internet;
ii. restraining any further postings by Mr. Farid of the defamatory statements that were the subject of the litigation;
iii. requiring Mr. Farid “to assign and grant in writing to the [responding parties] all rights, title and/or interest he owns in the copyright of the Defamatory Content and the Defamatory Postings”; and
iv. requiring Mr. Farid to assist the responding parties in obtaining the removal of the defamatory content from the Internet.
[13] Ramsay J. made damages awards in favour of each of the responding parties. She also granted the injunctive relief and mandatory orders requested, except that she declined “to make any order requiring the defendant to assist the plaintiff in removing the content as such a term [was] too vague and likely unenforceable”.
[14] Two separate formal orders were issued and entered in December 2023 – one dated March 4, 2022 dealing with the liability dispositions and one dated June 27, 2023 dealing with the remedies that were ordered.
[15] Mr. Farid did not perfect his appeal within 30 days of the June 27, 2023 reasons, or even within 30 days of the formal orders issued in December 2023.
[16] Counsel for the responding parties sent Mr. Farid an email on December 22, 2023, pointing out that Mr. Farid had not perfected his appeal by the required date of July 26, 2023 (30 days after the release of Ramsay J.’s June 27, 2023 reasons). The email noted that the responding parties had taken no steps to have the appeal dismissed as abandoned until the formal orders were issued, but since that had occurred, there was nothing preventing Mr. Farid from perfecting his appeal. The email warned that unless the appeal was perfected by January 17, 2024, a motion to dismiss the appeal would be brought.
[17] Mr. Farid responded by email indicating that he disagreed with the responding parties’ position, as the damages decision had given rise to a constitutional issue he wished to raise. He invited the responding parties to bring a motion to dismiss his appeal if they chose.
[18] Mr. Farid attempted to schedule a motion in the Superior Court to challenge, on constitutional grounds, the requirement that he assign the copyright in the defamatory posts. On February 23, 2024, Brownstone J. refused to schedule the motion on the basis that the proper route to challenge that portion of the order was by appeal. She stated, in part:
The defendant wishes to bring a motion for various relief, including setting aside the portion of Ramsay J.'s order requiring the assignment on the basis that it infringes his Charter guarantee of freedom of expression. In his notice of motion he also seeks a declaration that the order is unconstitutional, and asks that the order be stayed until the appeals are exhausted.
The relief the defendant is seeking should be sought in his appeal. He is concerned that the Court of Appeal will be concerned that he did not raise his arguments in the lower court. This does not change the proper route for him to next follow in respect of the decision of Ramsay J., which is by way of appeal.
[19] On February 29, 2024, the responding parties moved for an order dismissing the appeal. On March 15, 2024, the Registrar made an order dismissing Mr. Farid’s appeal under r. 61.13(3.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. That subrule requires that the Registrar dismiss an appeal which has not been perfected within the time prescribed by an order of a judge of the appellate court.
Analysis
[20] Mr. Farid made both written and oral submissions on this motion. He did not, however, file an affidavit. This affects certain of his arguments.
(1) Did the Registrar Err in Dismissing the Appeal?
[21] Mr. Farid makes various arguments that essentially assert that the motion to the Registrar was prejudged, that there were ex parte communications with counsel for the responding parties, and that he was not able to put forward or explain his position. However, he has filed no evidence in support of these complaints.
[22] Mr. Farid also submits that the Registrar misinterpreted the deadline for perfection. He argues that the time to perfect his appeal from the summary judgment granted by Ramsay J. ran for 30 days from the decision of Brownstone J. on February 23, 2024, because it was only at that point that proceedings in the Superior Court were completed. He submits that this interpretation is consistent with Thorburn J.A.’s endorsement which noted that a multiplicity of proceedings should be avoided and multiple appeals emanating from the same action should be heard by the same panel.
[23] I do not accept this argument. Thorburn J.A. set a specific deadline for perfection: 30 days from receipt of the reasons for decision on damages. She referred to this as a “strict timeline”. It does not matter, in my view, that the damages reasons also addressed and granted certain injunctive relief and mandatory orders. The reasons released on June 27, 2023 were still easily identifiable as the point to begin the count of the 30 days to the perfection deadline.
[24] The clear meaning of that deadline was not changed by Mr. Farid’s attempt to challenge a portion of Ramsay J.’s June 27, 2023 order by a further proceeding in the Superior Court.
[25] Although Mr. Farid argues that the Registrar should have given effect to his explanations for not having perfected, these arguments must be rejected. The Registrar has no power, in respect of an appeal, to vary a time provided for by the Rules: r. 3.02(3). Nothing in the Rules gives the Registrar the power to vary a time period set by a judge’s order. Rule 61.13(3.1) does not provide the Registrar with a discretion – it requires the Registrar to dismiss an appeal that has not been perfected within the time prescribed by a judge. That was the situation here. The Registrar was bound to give effect to the judicial deadline for perfection set by Thorburn J.A., and to dismiss the appeal because it was not met.
[26] Accordingly, there was no error in the Registrar’s dismissal order.
(2) Should the Registrar’s Order Nonetheless Be Set Aside and the Time for Perfection Extended?
[27] A Registrar’s order may be set aside by a judge of the appellate court: r. 61.16(5). In the case of a Registrar’s dismissal order made because time limits in the Rules were not complied with (see r. 61.13(1)-(3)), the factors guiding the exercise of the power to set the dismissal aside are those set out in Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 4:
i. Whether the appellant formed a bona fide intention to appeal within the relevant period;
ii. The length of the delay and explanation for the delay;
iii. Whether there is prejudice to the responding parties in granting the order;
iv. Whether the appeal is meritorious; and
v. Whether the “justice of the case” requires it, the justice of the case being the overriding consideration.
See also Hategan v. Frederiksen, 2022 ONCA 217, at para. 41; Jewish Foundation of Greater Toronto (Re), 2022 ONCA 581, 1 C.B.R. (7th) 1, at para. 19; Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116, at para. 2.
[28] Although the cases cited do not address a Registrar’s dismissal order that was granted based on the failure to meet a judicial deadline, in my view the same factors remain relevant, but certain of them take on added importance. First, where, as here, the judicial deadline was an extension from that mandated by the Rules and has been tailored specifically to the circumstances of the appeal, heightened attention to the length of, and explanation for, the delay beyond the deadline is warranted. Second, where, as here, the deadline was set to limit prejudice to the respondent, heightened attention to the prejudice caused to the respondent by the further delay is also warranted. Nevertheless, the overriding concern will always be whether the justice of the case requires an extension.
i. The Extent of the Delay and the Absence of a Satisfactory Explanation
[29] I am not satisfied that Mr. Farid has provided a satisfactory explanation for his delay in perfecting the appeal.
[30] The length of the delay since the July 26, 2023 deadline must be viewed in light of the overall length of time that has elapsed in the appeal. Mr. Farid appealed a judgment granted in March 2022. More than two years passed before the appeal was dismissed because it had not been perfected. Under the Rules, the time to perfect the appeal would have been 30 days after Mr. Farid filed his notice of appeal on June 13, 2022: r. 61.09(1)(a). The extended deadline set by Thorburn J.A. – July 26, 2023 – gave him a further year. But that further time was given on the basis that, in addition to appealing the liability determinations made on March 4, 2022, Mr. Farid might also appeal what would arise from the damages decision. Yet Mr. Farid has neither amended the existing notice of appeal, nor filed an additional one, relating to anything that was ordered on June 27, 2023. The only matters covered, by the only notice of appeal he has filed, are the determinations of March 4, 2022. [2]
[31] As for the reasons for the delay, Mr. Farid emphasized that he is self represented. But the order of Thorburn J.A., obtained on Mr. Farid’s own motion, took that into account by setting out a clear deadline for perfection. Moreover, Mr. Farid chose not to perfect even after having been given a clear warning by counsel for the responding parties that a motion to dismiss would be forthcoming if he did not do so.
[32] In his submission, Mr. Farid relies on the well established proposition that a court will be reluctant to allow counsel’s inadvertence to prejudice a client. He states that he received advice from an unnamed pro bono counsel that led him to believe he did not have to perfect until all proceedings in the Superior Court were completed, including his efforts to move to set aside the assignment provision in the formal order dated June 27, 2023. But to amount to an explanation for the delay, this assertion would need evidentiary support. As counsel for the responding parties stressed, Mr. Farid has not supplied evidence of that advice, nor of the identity of the counsel who allegedly gave it, its exact content, and the context in which it was given.
[33] Mr. Farid also submits that counsel for the responding parties consistently maintained, in opposition to his request to schedule a further Superior Court hearing to address the portion of the June 27, 2023 order requiring an assignment, that he had to pursue the matter by way of appeal. He suggests this is inconsistent with taking the position that the appeal cannot proceed due to delay, describing the responding parties’ position as one taken in bad faith.
[34] I reject that argument.
[35] First, Mr. Farid did not rely on any representation from the responding parties’ counsel that the deadline for perfection would run from the completion of his efforts in the Superior Court. The responding parties’ counsel was clear with Mr. Farid, in her emails in December 2023, that the deadline for perfection was July 26, 2023, that deadline had passed and a motion to dismiss would be brought. It was Mr. Farid who rejected that position, and welcomed a motion to dismiss, preferring his view about when the deadline would be reached.
[36] Second, counsel for the responding parties’ written submission before Brownstone J. clearly stated that a deadline had been set for perfection of the appeal that Mr. Farid had launched, and it had lapsed. The position that any challenge to the assignment provision had to be advanced by way of appeal was not a representation to the court that there would be no consequence to Mr. Farid’s default in perfecting the existing appeal.
ii. Prejudice
[37] Turning to prejudice, the deadline for perfection was set as a strict one to minimize prejudice to the responding parties and accommodate their desire to have finality in their quest to be free of the overhang of the defamatory statements. The prospect that the deadline, which has already been substantially exceeded, would be further extended could undo that ameliorative step. One of the responding parties, Ms. Clancy, filed an affidavit on this motion deposing to her inability to secure new employment, which she attributes to the continued presence of the defamatory statements online. She went on to state:
Over the many years that this litigation has been ongoing, I have been approached by multiple colleagues, who have mentioned that online searches revealed the scandalous information posted by Tanvir Farid about me. This has caused me significant mental anguish and distress.
As long as this litigation remains ongoing, I cannot put this ordeal behind me and move on with my life.
iii. The Merits
[38] Determining whether the justice of the case requires an extension includes consideration of the merits of the appeal. The question is not whether the appeal will succeed – it is whether the appeal lacks merit to the extent that, in the circumstances, it is just to deny the appellant the right to proceed with it: Issasi, at para. 10. Depending on their nature, assertions in the notice of appeal might not, on their own, establish that there is any merit to the appeal if there is nothing in the record for the extension motion – a record that can include an affidavit appending material that is proposed to be filed for the appeal [3] – that shows the assertions have enough grounding to qualify as arguable grounds of appeal: 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, at paras. 7-8.
[39] As the responding parties emphasize, Mr. Farid’s appeal of the liability determination against him faces very substantial obstacles. Ramsay J.’s finding that Mr. Farid was responsible for posting the defamatory statements is a finding of fact entitled to deference on appeal. Similarly, her finding that the responding parties’ claim against Mr. Farid as the author of the posts was not discoverable more than two years before the action was commenced is a mixed finding of fact and law that is also entitled to deference.
[40] In her reasons for finding liability, Ramsay J. extensively reviewed the evidence presented by the responding parties about whether Mr. Farid was the author and person who posted the defamatory statements, as well as Mr. Farid’s denials. She preferred the former, which was an exercise of her fact finding power.
[41] The evidence Ramsay J. relied on included a report (the “Duquette Report”), whose author was a certified forensic computer examiner, certified electronic evidence specialist, certified fraud examiner and licenced private investigator. The Duquette Report detailed a forensic analysis and extraction that was conducted on devices that were delivered up by Mr. Farid to an Independent Supervising Solicitor (“ISS”) appointed under the Anton Piller Order granted by Archibald J. in December 2017. The Anton Piller Order directed the ISS to search and seize, from Mr. Farid’s apartment, evidence and digital records relevant to the action, and required Mr. Farid to provide access to computers, smartphones, tablets, USB memory sticks, etc. [4]
[42] Ramsay J. noted that the Duquette Report concluded that “Mr. Farid is the person who authored and published the impugned postings.” She went on to find:
[Mr. Duquette] based his conclusions on the electronic evidence extracted from Mr. Farid’s devices which included the [responding parties’] names, photographs, particular words and phrases that appear in the postings, and internet-based activity related to vising the websites where the defamatory postings appear. In addition, [Mr. Farid’s] Acer laptop had been connected to IP addresses that were used to post some of the postings about the [responding parties]. The Acer laptop had been connected to public WiFi hotspots at various Starbucks and the Toronto Public Library, and many of the postings were posted from IP addresses associated with these locations.
[43] Ramsay J. also noted that Mr. Farid’s Nextech USB Key that was delivered under the Anton Piller Order contained information about many of the responding parties and “eerily similar content, if not the same wording, as the content and wording found in the online posts that are at the heart of this case.” She found that Mr. Farid had provided no adequate explanation for this, especially given his denial that he had any connection to the responding parties.
[44] With respect to the limitation period issue, Ramsay J. found that:
On the record before the court, Mr. Farid used various public WiFi hot spots and went to great lengths to conceal his identity to publish the defamatory posts on the internet. Some [responding parties] had attempted, without success, to identify the individual behind the defamatory postings through subpoenas and Norwich Orders. Mr. Farid’s identity was only discovered through a seasoned investigator with years of experience in cyber security and only after having access to Mr. Farid’s electronic devices by virtue of an Anton Piller Order. The first indication any of the [responding parties] had of Mr. Farid’s identity is with the completion of the Hexigent preliminary report dated November 3, 2017.
A statement of claim was issued on November 30, 2017, within the two years of when the [responding parties] knew or ought to have known, with the exercise of reasonable diligence, the identity of the tortfeasor, that is, that it was Mr. Farid who was responsible for posting the defamatory content on the various websites.
[45] Mr. Farid’s submissions on this motion generally refer to the notice of appeal filed in June 2022 for the existence of arguable grounds of appeal. But the assertions in the notice of appeal are unsupported by anything in the record that would allow me to conclude they have arguable merit. Below, I set out examples.
[46] Mr. Farid suggests that Ramsay J.’s reasons were inadequate. In his notice of appeal, he says that the reasons did not address a “plethora of evidence” he put forward. However, it is not apparent from the record what is lacking in the reasons, which are quite detailed.
[47] Similarly, the notice of appeal takes issue with the quality of the factual record and Ramsay J.’s appreciation of it. It asserts that the responding parties’ evidence consisted of a “litany of falsehoods” and “tailored opinions” by paid experts who tried to mislead the court. It further claims that Ramsay J. erred in deciding that Mr. Farid had not adequately explained certain evidence tendered by the responding parties and that the responding parties used evidence they were prohibited from utilizing. But the record for this motion does not include any detail or support for these assertions. They are not tied to anything in the record which shows that it is arguable that Ramsay J.’s factual findings were the product of any palpable and overriding error.
[48] The notice of appeal asserts that Ramsay J. was biased and refers to her having expressed a view about the outcome before the hearing was complete. But the record does not contain anything that would arguably displace the strong presumption of judicial impartiality.
[49] The notice of appeal further asserts that Ramsay J. was insufficiently attuned to Mr. Farid’s circumstances including his status as an “impoverished” litigant. It claims that Mr. Farid was unable to retain legal counsel, that he was deprived of the ability to seek the assistance of Duty Counsel, and that Ramsay J. failed to accommodate an in-person hearing. But there is also nothing in the record that would allow a determination that there is arguable merit to these assertions. The record does show that Mr. Farid had legal representation before, and that he was represented by legal counsel at, the hearing that led up to the March 4, 2022 summary judgment. It does not show any request for an in-person hearing or why Mr. Farid was prejudiced by the type of hearing that was conducted.
[50] The notice of appeal faults Ramsay J. for finding liability “en masse” instead of adjudicating the claim of every one of the responding parties. But the motion judge nowhere stated that she was determining liability “en masse”. She provided detail about each responding party, the relevant posts and examples of how the posts were defamatory of some of the responding parties in an appendix incorporated into her reasons. As noted above, Mr. Farid’s appeal does not challenge the conclusion that the posts were defamatory. Ramsay J. found that he was the author of the posts.
[51] The notice of appeal similarly asserts that Ramsay J. failed to address the acknowledgment by the responding parties’ linguistic expert that he had not reviewed each post. But her reasons expressly address this point and in any event she went on to find that it was unnecessary for her to rely on this expert’s report due to the overwhelming nature of the remaining evidence, including the Duquette Report.
[52] The notice of appeal submits that the issuance and execution of the Anton Piller Order breached Mr. Farid’s rights under the Canadian Charter of Rights and Freedoms. It contends that Ramsay J. should have set the order aside, or allowed Mr. Farid to move to do so, and excluded or ignored the evidence discovered as a result of it. However, Ramsay J. relied on the fact that in 2018 Pattillo J. considered and rejected a motion by Mr. Farid contesting the execution of the Anton Piller Order: Clancy v. Farid, 2018 ONSC 7482. No appeal was taken from that disposition. In light of this, it is difficult to see any arguable merit in the proposition that it remained open to Mr. Farid to ask Ramsay J., at the summary judgment motion, to consider further steps to exclude the evidence acquired as a result of the Anton Piller Order.
[53] The notice of appeal also asserts that Ramsay J. failed to address a jurisdictional issue arising from the fact that the defamatory posts appeared on websites that were not based in Canada. I see no apparent merit in that argument. There is nothing in the record that indicates that a jurisdictional objection was made, or that one could have been. It is not suggested that Mr. Farid was not served in Ontario, where he resides.
[54] The notice of appeal also asserts that Ramsay J. erred by failing to address an abuse of process issue said to arise because, at the behest of the responding parties, police in various jurisdictions investigated Mr. Farid for the defamatory posts but did not lay charges. Even if this assertion were substantiated, it does not arguably bear on Mr. Farid’s liability in a civil claim for defamation.
[55] The one argument that Mr. Farid did elaborate upon in his submissions was that Ramsay J. had erred in allowing the responding parties to proceed with a motion for civil contempt at the same time as the summary judgment hearing. He says that the contempt motion should have been dealt with first and dismissed because the Jordan [5] 30-month presumptive ceiling for proceedings in the Superior Court was exceeded. Although Ramsay J. did not grant the contempt motion, Mr. Farid argues that she heard, and accepted, evidence that Mr. Farid had deleted information from his devices while the Anton Piller Order was being executed, and this tainted the result of the summary judgment hearing.
[56] Some courts have observed that it is arguable that a civil motion for contempt is subject to the guarantee in s. 11(b) of the Charter that “any person charged with an offence has the right … to be tried within a reasonable time”: see e.g., Lymer v. Jonsson, 2023 ABCA 367, [2024] A.W.L.D. 1281, at para. 32; St-Amour c. Major, 2017 QCCS 2352, 141 W.C.B. (2d) 749. But even accepting that, Mr. Farid has not shown an arguable case that there was a delay beyond the Jordan ceiling.
[57] The Jordan ceilings apply from the date of the charge until the actual or anticipated end of the evidence and argument: R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364, at para. 31. The hearing before Ramsay J. resulting in her March 4, 2022 summary judgment (and the dismissal of the contempt motion) concluded on September 2, 2021. Mr. Farid has not identified how the “charge” of civil contempt – the bringing of the motion seeking that finding – could be said to have begun more than 30 months before September 2, 2021. Nor does the record for this motion contain any information that would allow that conclusion to be drawn.
[58] The motion for contempt (together with the motion for summary judgment) was, according to the responding parties’ written submission, commenced by a notice of motion in June 2019. Although the notice of motion is not in the responding parties’ record, the record does contain an endorsement from an initial scheduling hearing in July 2019. That endorsement directed service on Mr. Farid by August 30, 2019. Ramsay J. found, in her March 2022 reasons, that Mr. Farid was served with the notice of motion in August 2019. All these dates are less than 30 months from September 2, 2021, that is, the end of evidence and argument before Ramsay J. seeking a contempt finding. [6]
[59] In any event, Ramsay J. relied on the evidence that Mr. Farid deleted records he was bound to turn over under the doctrine of spoliation, which she described as an alternative to the contempt allegation. This doctrine permits the drawing of a rebuttable presumption that destroyed evidence was unfavourable to the party who destroyed it. Mr. Farid’s argument does not take into account that the same evidence and path of reasoning was available to Ramsay J. even if there had been no contempt motion or if such a motion had been adjudicated before the summary judgment hearing. Nor does it take into account that Ramsay J. said that the “spoliation of evidence prevented the [responding parties] from uncovering even more evidence to support their claim[s]” (emphasis added). This does not suggest that the evidence that was presented was in any way insufficient to support her liability finding.
iv. Conclusion
[60] Considering the length of, and lack of a satisfactory explanation for, the delay in meeting a judicial deadline, the prejudice to the responding parties, and the apparent absence of merit in the grounds of appeal, I conclude that the justice of the case does not support granting an extension of time.
DISPOSITION
[61] The motion is dismissed. The responding parties are entitled to costs of the motion fixed in the sum of $5,000 inclusive of disbursements and applicable taxes.
“B. Zarnett J.A.”
Footnotes
[1] The order was made by the Assistant Deputy Registrar.
[2] True enough, Mr. Farid’s attempt to challenge the assignment requirement in the June 27, 2023 order by a further motion in the Superior Court could be taken as a reflection of an intention to carry that challenge through to his appeal. But in the entire time from June 27, 2023 to the dismissal of his appeal on March 15, 2024 he did not amend his notice of appeal to bring that matter within the ambit of his appeal.
[3] Mr. Farid did not file any affidavit or otherwise provide the material he would propose to file to perfect the appeal.
[4] An order of Pattillo J. in March 2019 directed the ISS to provide evidence forensically copied from the devices delivered up by Mr. Farid to the responding parties’ expert.
[5] R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.
[6] The responding parties’ record also includes endorsements that show that the hearing dates (originally scheduled for December 2019) were adjourned several times at the request of Mr. Farid. Defence delay is deducted when determining whether a Jordan ceiling has been exceeded: Jordan, at para. 66.