CITATION: Sivapathasundaram v. Singh, 2023 ONSC 4440
DIVISIONAL COURT FILE NO.: 954/21
DATE: 20230801
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: MANOHARAN SIVAPATHASUNDARAM and SUNDARESWARI MANOHARAN, Moving Parties/ Plaintiffs
AND:
KARANPAL SINGH, Respondent/Defendant
BEFORE: Matheson J.
COUNSEL: Mario Sanjayan Pushparatnam, for the Moving Parties/Plaintiffs
Stefan Juzkiw, for the Respondent/Defendant
HEARD at Toronto: July 29, 2023, by videoconference
ENDORSEMENT
[1] The plaintiffs/moving parties seek an extension of time to appeal two decisions of Deputy Judge J. P. Criger, dated September 3, 2020 (Claim 19-31921), and September 22, 2021(Claim 19-31734, each vacating writs of seizure and sale. The respondent moved urgently to vacate those writs in order to proceed with real estate transactions. The motions were granted.
[2] The plaintiffs submit that they had no notice of the first motion and only short notice of the second one, learning of the first order at the time of the second motion. In turn, no one appeared for the plaintiffs at the first motion and one of the plaintiffs attended the second motion at the last minute. Both decisions concluded that the debt had been paid in full, referring to a debt settlement agreement and vacated the related writ.
[3] At the second hearing, the plaintiff Mr. Sivapathasundram told the Deputy Judge that he had not received payment, after which the Deputy Judge said she had heard enough to make the decision. The plaintiffs did not receive a decision and followed up with the Small Claim Court. The Small Claims Court later confirmed that because it did not have an email address for the plaintiffs, the respondent had advised the court that he would deliver the decision to them personally. It appears that did not occur. The plaintiffs therefore did not receive the decision until late October 2021 and this motion was brought in December 2021. After that time, there were various steps in relation to the motion. I conclude that the plaintiffs should not be faulted for the time between commencement and hearing of this motion, which is a substantial portion of the delay.
[4] The test for an extension of time is well-established. The main question is whether the overall justice of the case calls for an extension. Relevant factors include whether the plaintiffs formed an intention to appeal within the appeal period, the length and explanation for the delay, the merits of the proposed appeal and any prejudice to the respondent.
[5] Beginning with the merits, the allegation is that the respondent put forward fraudulent debt settlement agreements on the two urgent motions, with forged signatures. The plaintiffs have included an expert report on this motion, supporting that position. Since this expert report was not before the Deputy Judge, I have also considered the need to get leave to adduce fresh evidence on the appeal to rely on this report.
[6] The respondent submits that the appeal has no merit and submits that if the plaintiffs’ expert report was admitted as fresh evidence, the respondent has just obtained a contrary expert report. The respondent has also put forward affidavit evidence in support of the position that there were no forged signatures.
[7] Given that the allegation is fraud, and there is a supporting expert report, I proceed on the basis that the evidence may be admitted and give rise to sufficient merit for an extension in time.
[8] With respect to the intention to appeal and delay, I accept that there is some conflicting evidence. However, overall, I am satisfied that there is a reasonable explanation for the delay and that some steps were taken, albeit late, showing an intention to appeal.
[9] I consider the overall justice of the case in the context of a very serious allegation – fraud upon the court – and conflicting evidence. Such a serious allegation should be adjudicated, yet an appeal court is not well suited to address the disputed evidence.
[10] At the oral hearing of this motion yesterday, the respondent submitted that the plaintiffs should go back to the Small Claims Court to address the alleged fraud there, rather than pursuing this appeal. The basis for this position was developed during oral submissions. As it unfolded, the respondent relies on Rule 1.03 of the Small Claim Court Rules, which provides that where the rules do not cover a matter adequately, the practice shall be decided by analogy to those rules and, where appropriate, the Rules of Civil Procedure. The Rules of Civil Procedure provide expressly, in r. 59.06, that a party who seeks to have an order set aside on the ground of fraud may make a motion in the proceeding for the relief claimed.
[11] The respondent further confirms that he will not object to such a motion being brought at this stage in the Small Claims Court. In that regard, he will not object based on delay or take the position that such a motion is not a proper and available response to the situation. The parties agree that such a motion would be better suited to addressing the conflicting evidence.
[12] I therefore conclude that this matter should proceed as two motions (one in each file) in the Small Claims Court. The plaintiffs shall proceed with those motions promptly and therefore initiate them within 20 days from today. The moving parties shall provide the Small Claims Court with a copy of this decision when they file their motions.
[13] The plaintiffs had asked that the two matters be heard together. While I agree that makes sense for the two new motions to be heard together, the plaintiffs should make that request in the Small Claims Court.
[14] It is unnecessary to address the other relief sought in the motion, which arises only if the appeals were proceeding in this Court.
[15] I therefore dismiss this motion on basis that the matter will proceed in the Small Claims Court rather than in this Court. Because this course of action was first fully raised at the oral hearing of the motion for an extension of time, and because the allegation of fraud is still going to be pursued, albeit in a different venue, I conclude that there shall be no order as to costs.
Matheson J.
Date: August 1, 2023