Court of Appeal for Ontario

Date: 2024-09-26 Docket: M55342 & M55359 (COA-24-CV-0272)

Before: Hourigan, Trotter and Gomery JJ.A.

Between:

Harsha Rathod Plaintiff (Respondent/Moving Party)

And:

Christian Chukwuedozie Chijindu*, Nkiruka Chijindu also known as Nkiruka Ochei, Joy Chijindu*, Ijeoma Chijindu*, The Chijindu Law Firm, Autopoietic Telemetric Solutions Ltd., RVL Masonry Ltd., 2153801 Ontario LTD. cob as The Leon Group, Meridian Credit Union Limited, YDB Investments Corp., Bluekat Capital Corp., Great Northern Insulation Contracting Ltd., Obuba Law Firm and Peter Obuba Kalu Defendants (Appellants/Responding Parties/Respondent**/Moving Party**)

Counsel:

Brian Belmont, for the moving party (M55359), Bluekat Capital Corp. Amandeep Sidhu, for the moving party (M55342), Harsha Rathod Christian Chukwuedozie Chijindu, acting in person Nkiruka Chijindu also known as Nkiruka Ochei and Joy Chijindu, acting in person Ijeoma Chijindu, acting in person

Heard and released orally: September 24, 2024

On appeal from the judgment of Justice Susan J. Woodley of the Superior Court of Justice, dated February 13, 2024, with reasons reported at 2024 ONSC 939.

Reasons for Decision

[1] The appellants appeal an order for summary judgment in a mortgage action. The respondents on appeal move for an order dismissing the appeal based on the appellant’s failure to satisfy the order of Associate Chief Justice Fairburn, dated August 19, 2024, who ordered the appellants to pay outstanding costs orders, plus the costs of the motion before her, in the total amount of $46,280, by August 28, 2024: see Rathod v. Chijindu, 2024 ONCA 625 and Rathod v. Chijindu, 2024 ONCA 633 (addendum). Specifically, Associate Chief Justice Fairburn ordered “the responding parties will pay the outstanding cost orders no later than August 28, 2024 failing which the moving parties may bring a motion before a panel of this court to have the appeal dismissed.”

[2] The appellant’s have not complied with this order.

[3] The appellants submit that the reasons of the Associate Chief Justice contemplate that any motion to dismiss the appeal had to be brought ahead of the merits hearing, set for today, September 24, 2024. We disagree. In any event this court may entertain a motion on the date set for the hearing of an appeal. The appellant’s have had ample advance notice of this motion. There is no unfairness.

[4] The appellant submits that the process is unfair because the respondents initially indicated that they would move to quash the appeal, but ended up moving to have the appeal dismissed. The respondents’ request for an order dismissing the appeal for failing to obey a court order is appropriately styled, and it is consistent with the order of the Associate Chief Justice of Ontario.

[5] The appellant submits that the appeal should not be dismissed because they do not have the money to satisfy the order. In making her order, Associate Chief Justice Fairburn rejected this submission, noting that there was no reliable evidence in support of it. We are not sitting in review of the order of the Associate Chief Justice. Instead, we are being asked to give effect to it. We reject this submission.

[6] Accordingly, the appeal is dismissed.

[7] In terms of costs, Bluekat Capital Corp. is entitled to its costs (all inclusive) - $10,000 for the motion and $23,504 for the appeal. Ms. Rathod is entitled to her costs (all inclusive) - $5,508.75 for the motion and $6,045.60 for the appeal. Costs are payable by the appellant.

[8] The amount paid into court as security for costs as ordered by Roberts J.A. will be used to pay today’s costs order. Any shortfall shall be paid from the funds paid into court from the sale of the property municipally known as 740 Westshore Boulevard, Pickering, Ontario, which funds are to the credit of the underlying action, as third in payment priority.

“C.W. Hourigan J.A.”

“Gary Trotter J.A.”

“S. Gomery J.A.”