Court of Appeal for Ontario

Date: 20241223 Docket: COA-24-CV-0041

Judges: George, Favreau and Gomery JJ.A.

Between:

Mohammad Ali Rabbani Plaintiff (Respondent)

and

Alex Aidan Fitzgerald Furney also known as Alex Furney and Maryam Furney and Hassan Hashemi** Defendants (Appellants*)

Counsel: Alex Aidan Fitzgerald Furney and Maryam Furney, acting in person Louis S. Vittas, for the respondent, Mohammad Ali Rabbani No one appearing for Hassan Hashemi

Heard: December 19, 2024

On appeal from the judgment of Justice Meredith Donohue of the Superior Court of Justice, dated December 15, 2023, with reasons reported at 2023 ONSC 7059.

Reasons for Decision

[1] Alex and Maryam Furney appeal the motion judge’s decision granting the respondent Mohammad Ali Rabbani’s motion for summary judgment.

[2] After hearing submissions from Ms. Furney, which she presented on behalf of both appellants, we advised the parties that the appeal was dismissed with reasons to follow. There are the reasons.

[3] The motion judge held that the Furneys jointly and severally owed the respondent a total of $131,854 on three promissory notes and a mortgage as well as interest in a specified rate on the amount due under each contract from the date of default. She also ordered the Furneys to pay the respondent $41,691.21 in costs, plus interest. She rejected the Furneys’ argument that the respondent was not entitled to summary judgment because they had asserted a counterclaim, as they did not lead any evidence in support of it. The motion judge did however allow the counterclaim to proceed to trial, as the respondent had not sought its dismissal in his notice of motion.

[4] The Furneys raise over thirty grounds of appeal. In sum, they contend that the motion judge acted unfairly, made errors of law and fact, and should have awarded costs against their co-defendant, Hassan Hashemi.

[5] We do not find any reversible error.

[6] First, the Furneys contend that the motion judge erred by failing to grant them an adjournment of the summary judgment motion hearing. They sought an adjournment for three reasons: they had just retained new counsel; a trial date was set for four months after the summary judgment motion hearing; and Mr. Hashemi’s counsel advised that he wished to conduct cross-examinations.

[7] We do not agree that the motion judge was obliged to adjourn the summary judgment motion hearing in the circumstances. A judge has a broad discretion to manage proceedings, and this court will defer to a judge’s refusal of an adjournment absent an error of principle. Here, the motion judge declined the adjournment request because the motion had been held in abeyance for over three years and the defendants had been directed in July 2023 to serve notices of examination but did not do so. The fact that a date had been set for trial did not require her to adjourn the summary judgment motion.

[8] Second, the Furneys say that the motion judge erred in granting summary judgment. We disagree. The motion judge reviewed the uncontradicted evidence that the Furneys owed the capital and interest claimed by the respondent. She considered the Furneys’ defenses but rejected them given the lack of any evidence supporting them. She specifically considered the Furneys’ argument that they did not consent to Mr. Hashemi assigning the debts to the respondent. The motion judge found that it was the respondent who advanced the funds; that the appellants were not prejudiced by the assignment of Mr. Hashemi’s rights to the respondent; and that they acknowledged that the respondent had “taken over” the loans and the mortgage when they sought further loans from Mr. Hashemi in April 2017.

[9] The motion judge concluded that the action was “simply a collection matter which has been delayed for an inordinate amount of time with no genuine issue for trial”. The Furneys have identified no error of law or palpable and overriding error of fact and law in the motion judge’s reasons. The appellants are simply seeking to re-litigate the issues raised at the summary judgment motion.

[10] Third, the Furneys argue that the motion judge erred in failing to order Mr. Hashemi to pay any costs. The respondent did not seek any costs against Mr. Hashemi. In these circumstances, it was not an error for the motion judge to award no costs payable by him.

[11] We accordingly dismiss this appeal, with all-inclusive costs of $3,498.48 payable by the Furneys to Mohammad Ali Rabbani.

“J. George J.A.”

“L. Favreau J.A.”

“S. Gomery J.A.”