CITATION.: 786 Ummah Investments Corporation et al. v. Peel Standard Condominium Corporation 1021 et al., 2025 ONSC 2723
COURT FILE NO.: DC-25-0030-00
DATE.: May 2, 2025
SUPERIOR COURT OF JUSTICE – ONTARIO
7755 Hurontario Street, Brampton ON L6W 4T6
RE:
786 UMMAH INVESTMENTS CORP and AMIN, Abu, plaintiffs/applicants (appellants)
AND:
PEEL STANDARD CONDOMINIUM CORPORATION 1021, respondent
SUNKOM PROPERTIES INC. et al., respondents
BEFORE:
Justice TRIMBLE
COUNSEL:
Self-Represented plaintiff/applicant (appellant) AMIN Abu Email: abu786110@outlook.com
Howard SHANKMAN, for the respondents (plaintiff in counterclaim), PEEL STANDARD CONDOMINIUM CORPORATION 1021 Email: hlshankman@on.aibn.com
HEARD:
April 30, 2025, by video conference
MOTION TO EXTEND TIME ENDORSEMENT
[1] This case conference was called to determine how Mr. Amin’s to abridge the time for Applicant corporation and he to bring a Motion for Leave to appeal from the 10 October 2023 Order of Ricchetti, J. on costs (reasons were delivered on costs 27 October 2023) was to be heard.
[2] In his motion materials, Mr. Amin wanted the motion addressed in writing, but the Responding parties wanted the Motion heard orally.
[3] The parties agreed it could be addressed in writing.
[4] I confirmed orally that what was in the file was the full motion material, namely:
a. From Mr. Amin,
i. Notice of Motion, Motion Record comprising 35 pages, and Book of Authorities, and
ii. Reply Record in two volumes, of 90 and 79 pages respectively,
b. From the Respondents,
i. Responding Record of thirty-nine pages, and Book of Authorities.
The Appeal
[5] Mr. Amin is the controlling mind of 786 Ummah Investments Corp. For the ease of reference, I refer to both the moving parties collectively as Mr. Amin.
[6] Mr. Amin moves to extend the time to bring his motion for Leave to Appeal from the 10 October 2023 costs decision of Ricchetti, J. Ricchetti, J. dismissed Mr. Amin’s motion for substantive relief by Endorsement dated 10 October 2023. His Endorsement ordering Mr. Amin to pay over $18,000.00 in costs was dated 23 October. Both decisions were incorporated into one order dated 10 October 2023. Regardless, Mr. Amin confirms that he seeks to appeal only from the costs portion of the Order.
Background
[7] 786 Ummah Investments Corp (786 Ummah) acquired a commercial condominium located at 5 Cherrycrest Drive and 25 Cherrycrest Drive in Peel Standard Condominium Corporation 1021 (PSCC 1021). The Agreement of Purchase and Sale for the Units limited the business that 786 Ummah could carry on in the Unit to a "convenience store" and no other purpose. Later, 786 Ummah was granted the right to operate a deli from the Unit.
[8] Later still, 786 Ummah began to sell pizza and chicken notwithstanding a) they were not permitted to do so by their Agreement and b) there was one other condominium owner that had exclusive rights to sell pizza and another the exclusive rights to sell chicken. In 2023, 786 Ummah and Mr. Amin were advised in writing by PSCC 1021 that he could not sell chicken or pizza. Mr. Amin did not comply.
[9] 786 Ummah also asked if it could erect sign on the exterior of his Unit which advertised that his Unit sold pizza and chicken. PSCC 1021 refused to consent.
[10] In the summer of 2023, 786 Ummah and Mr. Amin brought a motion for an order requiring the Respondent Condo Corp. to refund all condominium fees the moving parties paid and an order permitting the installation of a channel lock sign on their condominium unit.
Motion
[11] In addition to the relief set out in his Notice of Motion, Mr. Amin’s written submissions before Ricchetti, J. sought considerable additional relief included neither in the Notice of Motion nor the Statement of Claim. The Statement of Claim only sought damages essentially for discrimination. Ricchetti J. said that the motion, in effect, was for summary judgment.
[12] By Endorsement dated 13 October 2023, Ricchetti, J. dismissed the motion and allowed for written submissions as to cost, which were provided. Ricchetti, J. released his costs Endorsement on 23 October.
[13] Since the Order is dated 10 October, I conclude that either:
a. Ricchetti, J. advised on 10 October that he was dismissing the motion for reasons to follow, then delivered his Endorsement on the merits on 13 October, and his costs Endorsement on 23 October, or
b. Judgment was pronounced upon the 13 October pronouncement of the Endorsement and the date on the Order is in error.
[14] This issue has no effect on this motion.
The Costs Award
[15] Ricchetti J. awarded the Responding Parties costs of $18,758.00, with post-judgment interest at 5% thereafter. By Endorsement dated 14 November, Ricchetti, J., amended his costs order to correct the pre-judgment interest rate to 7%.
Enforcement
[16] When Mr. Amin did not pay the costs order, on 3 January 2024 the Respondents filed a Write of Seizure and Sale with the Sheriff and directed the Sheriff to enforce the costs order. The Writ included the usual term that the Sheriff was required to sell the Mr. Amin’s property to satisfy the Judgment and recover “… your fees and expenses in enforcing this writ”. Those expenses totaled just shy of $14,000.00, the majority of which was for the title search, the Sheriff’s fees, and the required deposit.
Motion to Strike
[17] On February 4, 2025, the Sheriff advised Mr. Amin that the condominium would be sold if the costs order was not paid within ten days. After the Sheriff’s contact, Mr. Amin brough his motion to set aside the Writ and costs order. Tzimas, J., in her Endorsement of 12 February 2025, declared that the motion was urgent.
[18] The motion was put before Fowler-Byrne, J., on 18 February. She noted that Mr. Amin argued that the motion was brought “due to misrepresentation, abuse of process and lack of procedural fairness, misleading Justice Ricchetti and court.” He also sought the court’s consent to file an appeal of the costs order. He asked to stay the enforcement of the Writ until “full adjudication of this motion.”
[19] In adjourning the Motion to a later date, Fowler – Byrne, J. commented:
[9] Mr. Amin could not clearly articulate why his appeal in 2023 never proceeded. He claimed that Mr. Shankman would not consent and that the lawyer he hired did not do the work. Mr. Shankman does acknowledge receiving a Motion to Leave to Appeal, to which he responded, but does not know why it never proceeded.
[10] After reviewing the materials filed by both parties, it appears that the Writ was properly obtained and can be enforced. I have no jurisdiction to simply set aside or somehow vacate the order of Justice Ricchetti because he was “misled”, as Mr. Amin argues. In order to stay the enforcement of the Writ, 786 and Mr. Amin need to appeal the costs decision of Justice Ricchetti.
[11] In recognition of the impact that the sale of the Unit would have, I am giving Mr. Amin one last opportunity to seek leave to appeal. Mr. Amin is urged to seek legal advice in order to ensure he is taking the appropriate steps. If he remains a self-represented litigant, he may find assistance at https://representingyourselfcanada.com/.
[20] Mr. Amin’s motion came back before Stewart, J. on 11 March 2025. She noted that there was no evidence that Mr. Amin tried to seek leave to appeal from Ricchetti, J.’s order for costs. She adjourned the motion one more time, referred Mr. Amin to websites with resources for self represented clients, and commented:
[20] To be clear to the parties, this is the last adjournment. This motion will be decided on the evidence available at the next attendance.
[21] The plaintiffs are, once again, urged to get legal advice. Mr. Amin’s plan of submitting multiple emails (many emails containing more than one document) during his oral argument was unhelpful and did not provide the information he needs to succeed on this motion.
[22] Mr. Amin is once again urged to get legal advice. If there is no evidence of the proper appeal having been filed, then the writ will be acted upon….
[21] The Motion was adjourned again to 27 March, again before Stewart, J. She said:
[10] The appeal route for the plaintiffs to appeal the October 10, 2023 decision of this court is agreed: the plaintiffs must file a motion seeking leave to appeal to the Divisional Court.
[11] As noted above, absent an appeal, the writ cannot be stayed.
[12] This morning, Mr. Amin stated that he had paid the outstanding costs order.
[22] By my Endorsement in the Divisional Court of March 19, 2025, I acknowledged, the plaintiff’s motion for an extension of time to seek leave to appeal, set a timetable for delivery of materials and hearing of this motion to extend time, and advised that if I extended the time to seek leave to appeal, the motion for leave to appeal would have to be brought, in writing, before a Divisional Court Panel in Toronto.
[23] Stewart, J. stayed the enforcement of the writ pending the disposition of Mr. Amin’s motion to extend time to bring a motion for leave to appeal from Ricchetti, J.’s costs order.
Attempts to Appeal
[24] Mr. Amin says that he attempted to file his motion for Leave appeal in November 2023, but it was rejected repeatedly because of defects. He says that he took immediate action to correct the defects that others identified, but could not do so before the time for bringing his Motion for Leave expired. He said “Unfortunately, the multiple attempts to resolve the issues [with his materials] did not result in the filing being accepted before the filing deadline causing the delay in the appeal process.” Mr. Amin said that all the defects identified were “technical issues” and not to his negligence. He said that he acted with diligence, but circumstances were beyond his control.
[25] Ultimately, Mr. Amin says that the Respondent will suffer no prejudice by relieving against the expiry of the deadline within which to serve his Motion for Leave to Appeal. He, however, will. There is a companion action CV-23-1801-000, which is dependent on this appeal.
[26] The evidence does not support Mr. Amin’s submissions.
[27] The only evidence of the steps he took to bring his Motion for Leave to Appeal are email exchanges which show the following:
a. 10 November 2023 - Mr. Amin sent his Notice of Motion for Leave to Appal to a process server for service and filing. Later that day, the Divisional Court Office in Toronto rejected the Affidavit of Service and Notice of Motion because required documents were missing. The process server forwarded this note to Mr Amin who replied that what the Court meant was that the Notice of Motion was supposed to be served before it was filed and asked the process server to call him. The Process server responded by email saying that they checked the Rules and served the Notice of Motion first. “They are asking for Consent from all parties”. [Presumably, this was because the filing was made after 15 days after the 10 October date on the Order appealed from notwithstanding that the decision on costs was 27 October].
b. 11 November – Mr. Amin wrote to the process server. He quoted from the Court’s rejection email: “Required documents are missing (for example, proof of service or consent of parties).”, and said “please resubmit with a Divisional Court Intake form and copy of the decision” [presumably the documents that the Court said were missing.] He also asked the process server to resubmit the motion material. He concluded by saying “Please understand I passed the deadline today being the 15th day to file, so if you can re file at your earliest, Thank You so much!”
c. 15 November – Mr. Amin asked another process server to file the Notice of Motion for leave, Form 61A, Appellant’s Certificate, and “Court Order” in Divisional Court in Toronto today. The process server asked for the fee [which I infer was sent].
d. 17 November – Mr Amine wrote to the process server for confirmation that the Motion Record had been filed, saying “I had 5 days from the AOA to file the application. Today is the last day I believe,”. The Process server responded immediately thereafter reporting that the documents had been submitted and he was awaiting the Court’s confirmation. He said “Please see the attached document for confirmation” but no document is attached.
[28] Mr. Amin’s Affidavit is silent as to steps he may have taken after 17 November and before he served this motion on 15 March 2025 to properly serve and fine his Motion for Leave or bring a Motion to extend the time to bring his Motion for Leave, notwithstanding that he was aware his 15 days under Rule 61.03(1)(b) had expired at least as early as 15 November 2023. He mentions that he retained a lawyer to assist with filing the Appeal but provides no evidence about what was done. He says merely that the lawyer did not file it.
[29] The file in the underlying Civil action from which the Cost order arises, CV-23-1299-0000, indicates that by Notice of Motion dated 8 February 2025, Mr. Amin sought an order setting aside the Writ of Seizure and Sale and staying enforcement, among other relief. Tzimas, J., said on 12 February that the matter was urgent, set the return date of 18 February, and ordered that the Motion be served. That is the Motion that appeared before Stewart and Fowler-Byrne, JJ at different dates in March. Both judges said that the Writ was properly obtained and that the remedy was to appeal from the costs order, and both of whom adjourned the Motion to Set Aside the Writ so that Mr. Amin could bring this motion.
[30] Finally, the parties agree that Mr. Amin has paid the amount in costs Ricchetti, J. order plus the accrued interest, although I was taken to no correspondence concerning the payments. Stewart J at the 27 March 2025 hearing, noted that the parties told her that the costs and interest were paid. Mr. Amin has not paid the almost $14,000 that the Respondent says is owning for the fees and disbursements incurred in enforcing the Writ.
The Law
[31] The law on a motion for leave to extend the time to bring a Motion for Leave to Appeal was set out in Imona-Russel v. JD Ekpenyong, 2024 ONSC 1352, para. 9 et seq. applying Van de Kerckhove v. Wagner, 2022 ONSC 5780 at paras 10-11; Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 554 at para 2. On a motion for leave to extend the time to bring a motion for leave to appeal, the court should consider:
a. Whether the moving party formed an intention to appeal within the relevant period;
b. The length of the delay and the explanation for it;
c. The prejudice to the responding party;
d. The merits of the appeal; and
e. Whether the governing principle of whether the justice of the case requires that an extension be given.
[32] No one of these factors is determinative. They must be weighed together to determine the ‘justice of the case.’
[33] Intention to Appeal – Mr. Amin had the intention to appeal within the 15 days following Ricchetti, J.’s Costs Endorsement. His bringing his Motion to Set Aside the Writ in February 2025 indicates that he had the intention to challenge the Writ once he was told that it was going to be enforced. It is not evidence of an intention in February to appeal from the costs order. His bringing of this motion on 15 March to extend time shows his intention to appeal now, but only after he was told by two judges, one on 18 February and one on 11 March, that he had to do so.
[34] Delay and the Explanation – Mr. Amin brought his Motion for Leave to Appeal within the 15 days under R. 61.01(1)(b). It was served but rejected by the Court as defective. He tried again the day after the expiry of the 15 days. He appears to have done nothing further until 9 February 2025 (15 months after his unsuccessful attempt to seek Leave to Appeal and 17 months after the Costs Endorsement). He offered no explanation for this delay. The proper course would have been to bring a Motion, quickly, for an order abridging the time to bring his Motion for Leave to Appeal from Ricchetti, J’s cost order.
[35] He commenced this Motion to Extend Time to bring his Motion for Leave to Appeal on 15 March (1 month and one week after he brough his unsuccessful motion to set aside the Writ, one month after Fowler-Byrne, J. told him that the writ was valid and that the needed to seek Leave to Appeal from Ricchetti, J.’s order, and 4 days after Stewart, J. said the same thing). He offers no explanation why he did not take Justice Fowler-Byrne’s advice.
[36] It appears that Mr. Amin appointed counsel in February 2024, who acted only for a short time. There is no evidence of what the lawyer did. From the Respondent’s Affidavit, he acted for only a short time.
[37] Prejudice to the Respondent – The Respondent has incurred approximately $14,000 in enforcement expenses, comprising mostly the Sheriff’s fees and security deposit and the cost of a title search.
[38] Merits of the Appeal – The focus of this aspect of the test is on the merits of the Appeal from Ricchetti, J.’s decision on costs.
[39] In Carroll v. McEwen, 2018 ONCA 902, the Court of Appeal stated, at para. 58:
The legal principles that apply in a costs appeal are not in dispute. Considerable deference should be given to the trial judge's discretion in determining the entitlement, scale and quantum of a costs order: McNaughton Automotive Ltd. v. Co-operators General Insurance Co., 2008 ONCA 597, 95 O.R. (3d) 365 (Ont. C.A.), at para. 27. As a result, leave to appeal costs orders should be granted sparingly, only in obvious cases where there are strong grounds upon which the appellate court could find that the judge erred in exercising his discretion: Inter-Trust Mortgage Investment Corp. v. Robinson, at para. 12; Brad-Jay Investments Ltd. v. Szijjarto, at para. 21, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 92 (S.C.C.); and Feinstein v. Freedman, 2014 ONCA 205, 119 O.R. (3d) 385 (Ont. C.A.), at para. 52. Even where leave has been granted, a costs order should not be set aside unless the trial judge made an error in principle or the order is plainly wrong: Hamilton v. Open Window Bakery Ltd. (2003), 2004 SCC 9, [2004] 1 S.C.R. 303 (S.C.C.), at para. 27.
[40] More recently, in Baran v. Cranston, 2022 ONSC 6636, the Divisional Court stated at paras. 29 and 30:
The Ontario Court of Appeal has instructed that leave to appeal a costs order should be granted only "in obvious cases where the party seeking leave convinces the court there are 'strong grounds upon which the appellate court could find that the judge erred in exercising his discretion'" (Brad-Jay Investments Limited v. Village Developments Limited at para. 21; Levant v. DeMelle, 2022 ONCA 79 at para. 74).
The test to be applied in a costs appeal is set out in Hamilton v. Open Window Bakery Ltd, 2004 SCC 9 at para. 27: an appellate court should not interfere with an award of costs unless there has been an error of principle or the costs award is plainly wrong.
[41] Mr. Amin’s appeal has little merit.
[42] Mr. Amin did not include a draft Notice of Motion for Leave to Appeal. In his two-part reply record, however, he speaks at great length about the injustice that he has suffered at the hands of the Respondents and their solicitor. He also pleads that the costs order was unjust and its enforcement done in bad faith. With respect to the costs order, he says that it was obtained by false statements by the Respondents and/or their counsel. These statements, while contained in a sworn document contained in vol. 1 of Mr Amin’s Reply Record, are statements of position, not of evidence.
[43] Weighing all the factors together and the justice of the case, Mr. Amin’s motion must be dismissed. He does not provide any evidence to explain why, between 17 November 2023 and 15 March 2025 (16 months), he took no steps to extend the time to bring his Motion for Leave to appeal. He says in his Affidavit that he always intended to Appeal, but the evidence suggests otherwise. He knew on 15 November 2023 that his 15 day appeal period had had expired. He told his process server this. When he acted (14 months after the expiry of the appeal period), it was only because the Sheriff was enforcing the Writ. Knowing that his appeal period had expired, he chose to try to set aside the Writ, not to appeal from the cost order. He persisted in his efforts to set aside the Writ despite being told by Justices Fowler-Byrne and Stewart that the Writ was proper and that he needed to extend time to appeal.
[44] Further, Mr. Amin’s Motion for Leave to Appeal, and Appeal (were the Motion for Leave successful) has no merit. Mr. Amin raises no basis to suspect that Ricchetti, J.’s costs decision might be wrong. Mr. Amin points out no instance where Ricchetti, J. applies an incorrect principle of law or applies a correct principle incorrectly. He indicates no strong grounds upon which a Panel of the Divisional Court could find that the judge erred in exercising his discretion.
[45] Accordingly, Mr. Amin’s Motion to Extend the time within which he can bring he Motion for Leave to Appeal is dismissed.
Costs
[46] Because of offers made, Mr. Amin was not prepared to advise what costs he should receive if he were successful. The Respondent indicated that if it were successful, it wanted $1,500 for its costs.
[47] The Respondents are successful on this motion and presumed entitled to their costs. I will decide the question of who pays whom costs and in what amount based on written submissions not to exceed two double spaced, typewritten pages, excluding offers to settle and Bills of Costs. The Respondents’ submissions shall be served and filed by 4 pm, 23 May 2025 and Mr. Amin’s by 4pm 30 May 2025.
Trimble, J.
Released: May 2, 2025
CITATION.: 786 Ummah Investments Corporation et al. v. Peel Standard Condominium Corporation 1021 et al., 2025 ONSC 2723
COURT FILE NO.: DC-25-0030-00
DATE.: May 2, 2025
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
786 UMMAH INVESTMENTS CORPORATION et al.
Plaintiffs/Appellant
- and –
PEEL STANDARD CONDOMINIUM CORPORATION 1021 et al.
Respondents
MOTION TO EXTEND TIME ENDORSEMENT
Trimble J.
Released: May 2, 2025