Court File and Parties

CITATION: BLUEKAT CAPITAL CORP. v. YDB investments cORP., 2020 ONSC 3572

DIVISIONAL COURT FILE NO. 1197/19

DATE: 20200608

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: BLUEKAT CAPITAL CORP., Applicant (Respondent in appeal)

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YDB INVESTMENTS CORP, IJEOMA CHIJINDU, JOY CHIJINDU and CHRISTIAN CHIJINDU, Respondents (Appellants)

BEFORE: S.T. Bale J.

COUNSEL: Brian Belmont, for the Applicant (Respondent in appeal)

Christian Chijindu, in person

HEARD: in writing.

APPLICATION UNDER sections 159 and 160 of the Land Titles Act, R.S.O. 1990, c. L.5

ENDORSEMENT

[1] The appellants moved for an order staying the judgment of Speyers J. dated October 25, 2019, pending appeal. The respondent argues that the motion was abandoned, and requests its costs of the motion, pursuant to rule 37.09(3).

[2] On January 31, 2020, the motion was adjourned to be heard at the Central East sittings commencing May 18, 2020. Later that day, the lawyer for the respondent wrote to Christian Chijindu, then the lawyer for the appellants, requesting dates for the cross-examination of the deponent of the appellants’ supporting affidavit.

[3] On February 10, 2020, the appellants served the respondent with the documents required for the perfection of the appeal. On the same date, Mr. Chijindu said in an email to the lawyer for the respondent: “Regarding the pending Motion [the motion for a stay], the appellants will be withdrawing the Motion. A notice will be served upon you shortly.”

[4] On February 12, 2020, Mr. Chijindu’s licence to practice law was suspended by the Law Society of Ontario.

[5] On February 20, 2020, the lawyer for the respondent wrote to Mr. Chijindu noting that he had not been served with notice that the motion was being withdrawn, and suggesting that Mr. Chijindu’s previous correspondence had been a tactic to avoid or delay the cross-examination. He enclosed a notice of examination. Mr. Chijindu responded the same day saying: “I advised it will be withdrawn. It will be. I have been indisposed since. The Notice will be delivered to you.”

[6] The following day, Mr. Chijindu wrote again to the lawyer for the respondent saying:

This is to formally Notify you (for the 3rd time) that the Appellants (Moving Parties) in a Notice of Motion dated December 9, 2019 have forthwith withdrawn/abandoned that Motion.

The court will be notified to advise of this discontinuance/abandonment of the Motion. The Notice of Examination you issued was for the cross-examination of Juliet Ume-Onyido to facilitate your response to a Motion for a Stay of Execution. That particular Motion has now been discontinued by this email (3rd time you have been informed of this decision).

The Respondent, in the Motion, Bluekat Capital Corp has no right to cross-examine Ms. Juliet Ume-Onyido to facilitate its response to the Appeal on the merits, which has since been perfected by the Appellants. I look forward to receiving your client's response to the Appeal. After that, the Divisional Court will schedule the appeal for oral arguments.

[7] The position of the respondent is that the motion for a stay was abandoned by the appellants and that as a result, the respondent is entitled to its costs pursuant to rule 37.09 which provides:

37.09 (1) A party who makes a motion may abandon it by delivering a notice of abandonment. R.R.O. 1990, Reg. 194, r. 37.09 (1).

(2) A party who serves a notice of motion and does not file it or appear at the hearing shall be deemed to have abandoned the motion unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 37.09 (2).

(3) Where a motion is abandoned or is deemed to have been abandoned, a responding party on whom the notice of motion was served is entitled to the costs of the motion forthwith, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 37.09 (3).

[8] Mr. Chijindu’s position is that no notice of abandonment having been served or filed, the motion for a stay remains pending. He says that at the time he spoke of withdrawing the motion, he expected the appeal to be heard expeditiously, but that as a result of the suspension of court operations and the resulting delay in the hearing of the appeal, a stay of the judgment of Speyer J. is now required.

[9] While I do not condone Mr. Chijindu’s conduct, I agree that the motion has not been abandoned. There is a difference between saying that you intend to abandon a motion (or even that you have when you have not) and actually abandoning it by serving and filing a notice of abandonment, as provided for in rule 37.09(1).

[10] In addition, given that Mr. Chijindu’s licence to practice was suspended on February 12, 2020, it is unclear whether his co-appellants (his wife, sister and a related corporation) would be bound by the assertions made in his emails of February 20 and 21, 2020, and unclear whether they were served with notice of this motion.

[11] The costs of this motion are reserved to the court hearing the stay motion.

“S.T. Bale J.”

Date: June 8, 2020