Court File and Parties

COURT FILE NO.: CV-13-3955-00SR DATE: 2016/12/21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FATIMA FARZANA (Plaintiff) And: AHMAD ABDUL-HAMID (Defendant)

BEFORE: Justice I. F. Leach

COUNSEL: Ralph Swaine, for the plaintiff The defendant self-representing

HEARD: December 19, 2016

ENDORSEMENT

[1] Before me is a motion by the defendant for an order “to stay or vary” a Notice to Vacate the residential property occupied by the defendant and his family. Implicitly, the defendant similarly seeks to stay execution of the underlying writ of possession.

[2] The defendant also seeks an extension of time “to allow perfecting” of a Divisional Court appeal he commenced quite some time ago, (in February of 2015), seeking to set aside the underlying judgment giving rise to the plaintiff’s current efforts to secure possession of the property.

[3] At the close of oral submissions before me on December 19, 2016, I indicated that, for written reasons to follow, I was dismissing the defendant’s motion, apart from a further temporary stay of the writ of possession and notice to vacate until 4pm on February 1, 2017.

[4] These are those reasons, which also will address the parties’ oral cost submissions, which were taken under reserve.

Background

[5] This litigated dispute has a somewhat tortuous litigation history, which I will not attempt to outline in full here.

[6] In that regard, I am mindful that the events giving rise to the dispute between the parties already have been the subject of a number of prior lengthy and reported decisions, including:

• Farzana v. Abdul Hamid, [2014] O.J. No. 4382 (S.C.J.), a decision of Justice Price released August 25, 2014, setting aside a default judgment obtained by the plaintiff;
• Farzana v. Abdul Hamid, [2015] O.J. No. 339 (S.C.J.), a decision of Justice Ricchetti released on January 27, 2015, granting summary judgment in favour of the plaintiff; and
• Farzana v. Abdul Hamid, [2015] O.J. No. 4038 (S.C.J.), a decision of Justice Price awarding the defendant costs of $5,861.91 in relation to his motion to set aside the plaintiff’s earlier default judgment.

[7] I am told the Superior Court file in Brampton, (where this litigation apparently is based, despite steps taken by the defendant to have the current motion brought here in London on an emergency basis, as no judges were available to hear the matter in Brampton), also contains a further unreported cost endorsement of Justice Ricchetti, released on October 27, 2015, awarding the plaintiff costs of $4,646.00 in relation to her summary judgment motion and the action.

[8] Further subsequent developments were outlined in the handwritten endorsements made by Justice Grace, when the matter was before him in London on November 8, 2016, and again on November 17, 2016.

[9] By way of background, however, developments more pertinent to the issues before me include the following:

• The dispute between the parties stems from financing arrangements made in 2005, in relation to the defendant’s purchase of a residential property here in London; i.e., a property known by its municipal address as 42 Barrydale Crescent.
• The plaintiff commenced this litigation by way of a statement of claim issued on September 11, 2013, alleging that the second mortgage arrangement had gone into default.
• The plaintiff took steps to serve the statement of claim on October 2, 2013, by having it personally served on an adult male at the defendant’s residence who was thought to be the defendant. When no defence pleadings were delivered within the allotted time, the plaintiff took steps to obtain default judgment on October 23, 2013.
• In due course, the plaintiff obtained a writ of possession, (dated February 21, 2014), which was followed by efforts to secure vacant possession of the defendant’s London residence; i.e., the property securing the second mortgage. That prompted efforts by the defendant to stay execution of the writ of possession and set aside the default judgment, with the defendant asserting that he actually had not been the male served with the statement of claim.
• On August 25, 2014, Justice Price granted the defendant relief, setting aside the default judgment and permitting the defendant to file a statement of defence by September 23, 2014. Costs were left to be resolved by way of written submissions if no agreement was possible.
• A defence was filed, and the litigation proceeded. However, the plaintiff then quickly brought a motion for summary judgment, which was argued before Justice Ricchetti on January 22, 2015. Five days later, (on January 27, 2015), Justice Ricchetti released his decision granting summary judgment in favour of the plaintiff. In particular, Justice Ricchetti found that the parties had entered into a second mortgage, (in the nature of a “profit” only repayment mortgage loan), whereby the defendant was obliged to make payments at the rate of $205 per month, with the full principal payment of $24,600 to be paid at maturity of the loan, and that the loan went into default when the defendant stopped making the required monthly payments in November of 2011. In the result, the full amount of the second mortgage principal was outstanding as of December 1, 2011, and remained outstanding at the time of judgment. Justice Ricchetti directed that judgment issue in favour of the plaintiff, awarding:
  • the outstanding principal amount of $24,600;
  • prejudgment interest;
  • the all-inclusive sum of $1,695 for legal fees incurred in relation power of sale proceedings;
  • costs to be addressed by written submissions; and
  • possession of the underlying residential property secured by the mortgage, (i.e., 42 Barrydale Crescent, here in London).
• The defendant asserts that he then served a notice of appeal and a certificate respecting evidence on or about February 26, 2015; i.e., within 30 days of the making of Justice Ricchetti’s order, as required by Rule 61.04 of the Rules of Civil Procedure. Copies of such a notice of appeal, (albeit erroneously dated February 26, 2014), and a certificate respecting evidence, (dated February 26, 2015), were filed as affidavit exhibits by the defendant on this motion. However, the plaintiff and her counsel emphatically deny having ever been served with those appeal materials. No copies of the Divisional Court file contents, nor details in that regard, were made available for my review, (despite Justice Grace directing the defendant to supply such information by way of a supplementary affidavit). It therefore is impossible for me to say what particular evidence of service was tendered by the defendant when he filed any notice of appeal or certificate of evidence with the Divisional Court. However, it seems that such a filing definitely did occur, as independent inquiries made by Justice Grace confirmed the existence of an open Divisional Court appeal file involving the parties; i.e., Court File No. 15/31 (Brampton), with a notice of appeal filed on March 10, 2015. In any event, the notice of appeal filed in the material before me asks the Divisional Court to set aside Justice Ricchetti’s order and grant judgment:
  • dismissing the plaintiff’s motion for summary judgment;
  • directing arbitration;
  • directing that further proceedings take place in London;
  • dismissing the plaintiff’s claim, (on the stated basis that the defendant had obtained a default judgment prior to the plaintiff’s motion for summary judgment); and
  • awarding the defendant his costs.
• Notwithstanding formal commencement of that Divisional Court appeal, it is not disputed that the defendant then took no steps whatsoever to perfect his appeal until confronted with the plaintiff’s renewed efforts, in the wake of Justice Ricchetti’s decision, to secure vacant possession of the underlying residential property.
• In particular, at the Superior Court level, (and in professed ignorance of the appeal commenced by the defendant), the plaintiff was proceeding with steps to enforce the judgment she had obtained from Justice Ricchetti. Those steps included;
  • the plaintiff obtaining, on April 5, 2016, (by way of the ex parte motion procedure expressly permitted by Rule 60.11), an order granting leave for the plaintiff to be issued a writ of possession, (with the underlying affidavit material filed on the relevant motion including no mention whatsoever of any appeal of the underlying judgment by the defendant);
  • a writ of possession subsequently being issued on or about October 26, 2016;
  • a notice to vacate being issued on or about November 2, 2016, (essentially requiring the defendant and his family to vacate 42 Barrydale Crescent on or before November 10, 2016) ; and
  • service of that notice to vacate on November 3, 2016.
• The defendant moved quickly, in the wake of receiving that notice to vacate. He says he telephoned the plaintiff’s lawyer, Mr Swaine, who abruptly indicated, before hanging up, that he no longer represented the plaintiff or practised real estate law. (The communication is denied, in the responding material filed by the plaintiff.) In any event, within days of receiving the notice to vacate, the defendant unquestionably had prepared his motion record herein, including a supporting affidavit highlighting the existence of his appeal, as well as:
  • copies of motion material filed by the plaintiff to obtain the order granting leave to issue a writ of possession, (retrieved from the relevant Superior Court file in the Brampton courthouse);
  • a letter dated February 25, 2016, purportedly written by the defendant to the plaintiff, requesting the plaintiff’s consent to an extension of time to perfect the defendant’s appeal, owing to his wife’s health, his health, and his “family’s situation with seven children”; and
  • a letter dated February 27, 2016, purportedly written by the plaintiff to the defendant, consenting to an unspecified and therefore unlimited extension of time for the defendant to perfect his appeal, so long as the defendant took no steps to enforce the cost award made in the defendant’s favour by Justice Price.
• In relation to the latter two documents, the supporting affidavit sworn and filed by the defendant claimed that his son Walid personally delivered the February 25^th letter to the plaintiff’s residence, where he was met at the door by an unidentified woman, (not the plaintiff), who undertook to relay the letter to the plaintiff and secure a written reply for pick-up by the defendant’s son within two days. The defendant also claimed that his son Walid attended again at the plaintiff’s residence two days later, as directed, at which time he was supplied with the typed February 27^th consent letter said to bear the plaintiff’s signature.
• When the defendant filed his motion material with the court, it was accompanied by an affidavit of service claiming that the material had been served by handing it personally to the plaintiff’s husband on November 7, 2016. (As noted below, this too is denied in the plaintiff’s material.)
• The matter initially came before Justice Grace here in London on November 8, 2016, at which time the defendant attended court with his son Walid. No one appeared for the plaintiff. In the result, Justice Grace made an interim order which included the following terms and directions:
  • exercise of the writ of possession was stayed temporarily until Friday, November 18, 2016, at 5pm;
  • the motion was adjourned to Thursday, November 17, 2016, at 9am, before Justice Grace;
  • notice of that second hearing, and a copy of Justice Grace’s endorsement, were to be delivered by prepaid courier to the plaintiff’s Mississauga residence and the Mississauga office of the plaintiff’s lawyers, (i.e., Nanda & Associates, where Mr Swaine practises law);
  • a copy of the endorsement also was to be given to the Sheriff for the County of Middlesex, making it clear that the underlying writ of possession was not be exercised pending further order of the court;
  • the defendant was to “obtain details concerning the file number and contents of the Divisional Court file in Brampton and file a short affidavit summarizing the information uncovered”; and
  • the file was to remain in London, so it would be available to Justice Grace on November 17, 2016.
• According to affidavits sworn by the defendant and his spouse on November 17, 2016:
  • “after leaving the courthouse on November 9, 2016” (sic), the defendant contacted a specified transcriptionist and ordered an expedited transcript of the hearing before Justice Ricchetti;
  • on the morning of November 10, 2016, the plaintiff’s husband attended at the defendant’s London residence with a locksmith, seeking to obtain possession of the property, at which time the defendant allegedly handed the plaintiff’s husband a copy of the endorsement made by Justice Grace on November 8, 2016; and
  • on November 10, 2016, the defendant telephoned the Brampton courthouse “to get the file number”, but apart from receiving an indication that “the Appeal was open”, the defendant was told that information about the court file would not be released over the telephone, and that the defendant was obliged to attend in person at the courthouse;
  • on November 10, 2016, the defendant sent text messages to his lawyer, asking for that lawyer’s assistance to “get … the File number, which he did”;
  • on November 11, 2016, the defendant sought to involve a specified mediator to resolve the parties’ dispute, received an email from a different person offering to mediate, and made efforts to locate and consult with a pro bono lawyer to assist with his appeal;
  • on November 11, 2016, the defendant’s spouse gave copies of Justice Grace’s endorsement to a courier for delivery to the plaintiff’s residence and another indicated address in Mississauga; and
  • on November 12, 2016, the defendant and his wife travelled from London to Mississauga, where they made abortive efforts to meet with a mediator before then attending at the residence of the plaintiff and her husband, seeking to discuss the matter.
• The matter came back before Justice Grace on November 17, 2015, with the defendant once again self-representing, and Mr Swaine appearing for the plaintiff. At that time:
  • Mr Swaine indicated that the defendant had not complied with Justice Grace’s earlier directions concerning service of the endorsement, but instead had simply supplied the plaintiff and her counsel with copies of a new statement of claim issued by the plaintiff against the defendant on November 8, 2016, seeking $100,00 in damages because the plaintiff allegedly had circulated information about her judgment that was now being included in credit reports concerning the defendant, thereby causing him “a great deal of financial loss and opportunity”;
  • Mr Swaine indicated that he had not yet been provided with the defendant’s motion material for review, and had obtained a copy of the November 8^th endorsement made by Justice Grace when he made inquiries after the Sheriff failed to follow through on execution of the plaintiff’s writ of possession;
  • Mr Swaine indicated that he also had never received a notice of appeal in relation to the judgment granted by Justice Ricchetti on January 27, 2015;
  • Justice Grace noted that he independently had reviewed a case history report for Divisional Court File No. 15/31 (Brampton), which indicated that a notice of appeal had been filed on March 10, 2015, and that the file was “active”;
  • the defendant supplemented his original motion material by handing up the two aforesaid further affidavits, (from the defendant and his spouse), sworn that morning;
  • to provide the plaintiff and her counsel with an opportunity to review the defendant’s material and respond, Justice Grace adjourned hearing of the motion to December 19, 2016, while extending the temporary stay of the enforcement proceedings until 5pm on December 20, 2016; and
  • Justice Grace imposed a strict timetable for the filing of any further motion material, whereby:
    • the plaintiff was to serve her responding material by courier departing no later than 4:30pm on November 23, 2016;
    • the defendant was to serve any reply material on Mr Swaine by courier departing no later than November 30, 2016; and
    • “NO factual material [was to] be served or filed thereafter”.
• On November 22, 2016, the plaintiff served and filed responding affidavits sworn by herself and her husband, which included the following information and assertions:
  • The plaintiff’s husband expressly denied having been served with the plaintiff’s motion material on November 7, 2016.
  • The plaintiff’s husband acknowledged seeing the defendant on November 8, 2016, but denied service of any motion material on that date. He swears that the defendant instead served him that morning with a copy of the defendant’s new statement of claim, (described above), issued on November 8, 2016.
  • The plaintiff’s husband confirmed that he attended with a locksmith at the defendant’s residence on November 10, 2016, intending to meet with the Sheriff of Middlesex County to carry out the scheduled eviction. He says he did so because neither he nor the plaintiff had received any notice or service of material whatsoever in relation to the defendant’s motion. Moreover, when he attended at the property on November 10, 2016, he was not served with any motion material, or informed about the defendant’s motion.
  • The plaintiff herself similarly indicated that she had never been served with any motion material, and that all she received, by Canada Post express post from the defendant’s spouse, was a copy of the same “new” statement of claim issued by the defendant on November 8, 2016.
  • In her sworn evidence, the plaintiff also confirmed that, prior to the week before November 22, 2016, neither she nor her lawyer of record had ever been advised of any appeal by the defendant to the Divisional Court appeal from the judgment granted by Justice Ricchetti. Nor had they ever been served with any documents in that regard.
  • In particular, the plaintiff categorically denied having ever made any “deal” with the defendant concerning his Divisional Court appeal, (which the plaintiff knew nothing about), and similarly denied having ever written the purported letter of consent dated February 27, 2016. She emphasized that she never would have communicated directly with the defendant, (as she does not trust him), that she would have consulted her lawyer in relation to any such request from the defendant for an extension of time to perfect his appeal. The plaintiff also swears that any response in that regard would have been sent by her lawyer. To the plaintiff, it looked like a copy of her signature on her earlier summary judgment material had been “copied and pasted” to create the February 27^th letter of consent.
  • The plaintiff emphasized that she is suffering prejudice by the ongoing delay of her efforts to secure possession of 42 Barrydale Crescent. For example, she has been served with a “notice of sale under mortgage” by the holder of the first mortgage, (dated December 5, 2014), and is not aware of the present status of the first mortgage and/or whether or not further measures have been or are being taken to enforce that mortgage. She also has been served with material by the city of London, indicating that the defendant has failed to pay property taxes in relation to the property since 2013. That in turn was the basis for the city of London sending the plaintiff a notice, (dated June 16, 2016), indicating that 42 Barrydale Crescent “is now subject to the provisions of the Municipal Act, 2001, which permits the City to sell the property to recover taxes and costs one year after registering a tax arrears certificate against title”.

[10] Justice Grace was not available to hear the matter on December 19, 2016, and it therefore came before me instead.

[11] At that time, the defendant attempted to file further material that admittedly had not been served and filed in accordance with the strict timetable and deadlines clearly set by Justice Grace on November 17, 2016. In the circumstances, I indicated that the further material would not be accepted.

Analysis

[12] Considerable effort and attention obviously has been directed to the question of whether or not the plaintiff was ever made aware of the defendant’s appeal to the Divisional Court, whether the plaintiff agreed to extend the time for perfection of that appeal, and whether further time should be allowed in that regard.

[13] The defendant argued that the plaintiff has been acting improperly in that regard, and that he should be granted relief accordingly.

PROPRIETY OF PLAINTIFF ENFORCEMENT MEASURES TO DATE

[14] I nevertheless begin by noting my view that the defendant’s appeal to the Divisional Court is somewhat of a red herring, at least insofar as the validity and propriety of efforts to date by the plaintiff to secure possession of the property are concerned. In that regard:

• It should be emphasized that the judgment granted by Justice Ricchetti on January 27, 2015, expressly awarded the plaintiff not only monetary relief, (under various specified descriptions), but also possession of 42 Barrydale Crescent.
• Pursuant to Rule 63.01(1), the delivery of a notice of appeal from a final order automatically stays, until the disposition of the appeal, “any provision of the order for the payment of money”. [Emphasis added.] Nothing in Rule 63.01 confers an automatic stay in relation to provisions of a final order granting possession of property.
• The defendant’s notice of appeal contains no request for a stay of the provisions in Justice Ricchetti’s judgment granting the plaintiff possession of the property. Nor is there any evidence of the defendant taking any steps whatsoever, prior to the motion herein, to seek or obtain an order from the Superior Court or the Divisional Court imposing such a stay, pursuant to Rule 63.02(1).
• In the circumstances, prior to the defendant’s motion herein, there accordingly was nothing whatsoever to prevent or restrict the plaintiff from taking further steps to enforce the provisions of Justice Ricchetti’s order granting the plaintiff possession of the property. Unless and until the defendant took proactive steps to obtain an appropriate stay by order, pursuant to Rule 63.02, such enforcement measures by the plaintiff would have been entirely proper even if she had been served with the defendant’s notice of appeal and certificate of evidence.

NATURE OF RELIEF REQUESTED BY DEFENDANT AND JURISDICTION

[15] At best, it seems to me that the defendant’s current motion is a very belated effort to obtain such a stay, based on an appeal he may have commenced without proper service, and which he admittedly took no steps whatsoever to perfect for approximately 19 months; i.e., the period from the filing of his notice of appeal on March 10, 2015, to his ordering of transcripts on or about November 9, 2016.

[16] Clearly, there would be no basis to impose such a stay if the defendant’s appeal is not going to proceed. That in turn raises the question of whether the defendant should be granted a requested extension of time to belatedly complete the steps necessary to pursue his appeal.

[17] Although not framed as such, the defendant’s motion therefore requires determinations as to:

i. whether the court, pursuant to Rule 3.02, should extend the Rule 61.09 timelines for perfecting the defendant’s appeal and/or the Rule 61.05(5) deadline for his filing of proof that transcripts have been ordered; and

ii. whether the court, pursuant to Rule 63.02(1), should grant an order imposing a stay, in relation to the provisions of Justice Ricchetti’s judgment granting the plaintiff possession of the property, until the defendant’s appeal to the Divisional Court has been decided.

[18] The first request must be decided by a single judge of the Divisional Court, pursuant to Rule 3.02(3) and s.21(3) of the Courts of Justice Act, R.S.O, 1990 c.C.43. Although this motion formally was brought in the Superior Court of Justice, I have jurisdiction to deal with the request in my alternate capacity as a judge of the Divisional Court, pursuant to s.18(3) of the Courts of Justice Act, supra.

[19] The second request may be decided by a single judge of the Superior Court of Justice, pursuant to Rules 63.02(1)(a) and 37.02(1), or by a single judge of the Divisional Court, pursuant to Rule 63.02(1)(b) and s.21(3) of the Courts of Justice Act, supra. I accordingly have jurisdiction to deal with the request in either of my capacities.

EXTENSION OF TIME TO PURSUE APPEAL

[20] In authorities such as Rizzi v. Mavros (2007), 2007 ONCA 350, 85 O.R. (3d) 401 (C.A.), at paragraph 16, Monteith v. Monteith, 2010 ONCA 78, at paragraphs 11 and 20, and Issai v. Rosenzweig, 2011 ONCA 112, at paragraphs 4, 5 and 10, our Court of Appeal has outlined the factors to be considered when determining whether to exercise discretion to extend the time for filing a notice of appeal or to perfect an appeal. They include the following:

i. whether the appellant formed an intention to appeal and maintained that intention to appeal within the relevant period;

ii. the length of the delay and explanation for the delay;

iii. any prejudice to the respondent;

iv. the merits of the appeal, (not with a view to determining whether the appeal will succeed, but to determine whether it has so little merit that the court could reasonably deny the important right of appeal); and

v. whether the “justice of the case” requires granting of the requested extension; i.e., an “umbrella” factor which requires the motions judge to step back, balance the proceeding factors, and consider any other factor that might be relevant in the particular circumstances of the appeal.

[21] I therefore turn first to the question of whether the defendant formed an intention to appeal and maintained that intention to appeal within the relevant period, which in this case is the period from the rendering of Justice Ricchetti’s judgment on January 27, 2015, to formal commencement of the defendant’s motion herein on or about November 7, 2016. In that regard:

• The evidence before me suggests that the defendant formed a timely intention to appeal Justice Ricchetti’s decision. Again, a notice of appeal, dated within the 30 day deadline imposed by Rule 61.04(1), apparently was filed with the Divisional Court on March 10, 2015.
• I nevertheless also am mindful of the strong indications that the defendant’s notice of appeal and certificate regarding evidence were not properly served in a timely way, in accordance with Rule 61.04(1). In that regard, I think it significant that, prior to the rendering of Justice Ricchetti’s judgment on January 27, 2016, the plaintiff clearly had been engaged in very proactive and sustained efforts, through the assistance of counsel, to press the matter to a conclusion through proactive litigation in order to bring finality to the parties’ dispute. Following service of her statement of claim, she moved promptly by way of default proceedings when the defendant failed to respond. She then strenuously resisted the defendant’s efforts to have those default proceedings set aside, tendering evidence before Justice Price of alleged prejudice she already was facing. When her default judgment was set aside, she then moved forward promptly and effectively with a motion for summary judgment. With that clearly demonstrated pattern of determined behaviour to bring the litigation to an end as soon as possible, and the plaintiff’s stated position regarding concerns of prejudice, I think it extremely unlikely, and indeed unbelievable, that the plaintiff and her lawyer would have reacted to service of a notice of appeal and a certificate of evidence by complete silence, followed by contentment with letting the appeal languish without taking any steps whatsoever to have it dismissed for delay. I also think it telling that the defendant failed to tender any evidence indicating the manner and timing of his purported service of the notice of appeal and certificate of evidence on the plaintiff and her counsel, (which no doubt could have been effected easily at the time, as the defendant had just been engaged in very active litigation of the summary judgment motion with the plaintiff and her lawyer). My impression in that regard is buttressed by the defendant’s failure to comply with Justice Grace’s explicit direction that the defendant, between November 8 and November 17, 1016, was to obtain details concerning the file number and contents of the Divisional Court file in Brampton, and file a short affidavit summarizing the information uncovered. On a balance of probabilities, I find that the defendant never actually served the plaintiff and her lawyer with the notice of appeal and certificate of evidence.
• Moreover, even if the defendant formed a timely intention to appeal Justice Ricchetti’s judgment, there is little evidence before me to suggest that he maintained that intention over the 19 month period between March 10, 2015, and November 7, 2016. In my view, intention to pursue an appeal must connote something more than merely keeping a “foot in the appellate door” to block its complete closure, while simultaneously taking absolutely no steps to move forward through that appellate door unless and until its final closure is threatened. In this case, however, the sole evidence of the defendant doing anything in relation to his appeal, between March 10, 2015, and November 7, 2016, relates to his purported successful effort to secure the plaintiff’s written consent to a completely open-ended extension of time for the defendant’s perfection of the appeal, (provided the defendant took no steps to attempt enforcement of the cost award made by Justice Price).
• In my view, those purported efforts, (as the matter was approaching the one year anniversary of the notice of appeal and its filing with the Divisional Court), almost certainly were prompted by concerns about the operation of Rule 61.12.1(2), which permits the Registrar of the Divisional Court to initiate steps to effect an administrative dismissal of appeals for delay, in situations where transcripts of evidence have not been filed or appeals have not been perfected within one year of a notice of appeal being filed. If so, the plaintiff was not taking steps to pursue his appeal, but to prevent its foreclosure.
• Furthermore, for reasons similar to those grounding my finding that the notice of appeal and certificate of evidence were never actually served, (but in this instance buttressed by the weak evidence tendered by the plaintiff, and the clearly reasoned and emphatic sworn denials of the plaintiff), I find on a balance of probabilities that the purported letter of consent from the plaintiff, dated February 27, 2016, and granting a completely open-ended extension of time for perfection of the defendant’s appeal, (so long as he did not attempt to enforce his cost award against the plaintiff), was not actually authored or signed by the plaintiff. Again, the history of this matter shows a very determined and sustained effort by the plaintiff to litigate her dispute with the defendant through to a final conclusion as soon as possible, with the constant assistance of her lawyer. In the circumstances, I find it completely unbelievable that the plaintiff, having eventually succeeded in her extended uphill efforts to obtain an enforceable judgment against the defendant, suddenly would consent, on short notice, in response to an unsupported three sentence written request, and without the involvement of her lawyer, to an arrangement whereby the defendant effectively was given unilateral ability to prolong the dispute for an indefinite period, and perhaps forever. Nor do I think that the defendant had any effective leverage to secure such a consent, as the cost award made in his favour was clearly more than offset by the monetary awards in Justice Ricchetti’s judgment, and the cost award made against the defendant by Justice Ricchetti on October 27, 2015. (For the same reason, I reject the defendant’s suggestion that the plaintiff had any effective net cost obligation to the defendant that prevented her from moving forward with her litigation.) I also think it telling that the defendant’s evidence of the plaintiff purportedly authoring and signing the letter of February 27, 2016 is clearly hearsay upon hearsay. In particular, the defendant swears that the information was provided to him by his son, (who did not swear an affidavit in that regard, despite coming to court with the defendant on November 8, 2016), and the son’s indication was that an unknown female other than the plaintiff informed him that the purported consent letter had been provided by the plaintiff. In my view, such indirect hearsay evidence pales in comparison to the very direct and emphatic denials of the plaintiff in that regard. Moreover, her suggested explanation as to how those creating the letter of consent may have had access to a copy of her signature is not implausible.
• As the purported letter consenting to an indefinite extension of time for perfection of the appeal was not actually authored or signed by the plaintiff, the defendant actually took no legitimate steps to pursue or preserve his right of appeal between March 10, 2015, and November 7, 2016.
• In the result, I find that the defendant did not maintain any real intention to pursue his appeal prior to bringing the motion herein on or about November 7, 2016.

[22] I turn next to consideration of the defendant’s delay in perfecting his appeal, and his explanation for that delay. In that regard:

• Pursuant to Rule 61.09(1)(a), the deadline for perfecting an appeal where no transcript of evidence is required for the appeal is 30 days after filing the notice of appeal. There is good reason to think that deadline applies to this case, as the hearing before Justice Ricchetti involved a motion for summary judgment, in respect of which no oral testimony was received and all evidence was tendered by way of affidavits. If so, the deadline for perfection of the defendant’s appeal was 30 days from the filing of his notice of appeal, or April 9, 2015, and the defendant was already 19 months beyond the deadline when he first took steps in that regard.
• The defendant suggests that transcripts are required for his appeal, as one of the grounds relied upon in his notice of appeal is an allegation that Justice Ricchetti displayed “reasonable apprehension of bias through his conduct and gestures” towards the defendant during the summary judgment hearing. If that might liberally be construed as a “transcript of evidence” that is “required for the appeal”, Rule 61.09(1)(b) would extend the time for perfecting the appeal to “within 60 days after receiving notice that the evidence has been transcribed”. In that case, however, the defendant was obliged to deliver proof of the transcripts being ordered within 30 days of filing his notice of appeal, (i.e., by April 9, 2015), pursuant to Rule 61.05(5). Even on this alternative view, he therefore once again already would be 19 months in default of his appeal obligations.
• In my view, a 19 month delay in complying with the rules applicable to diligent pursuit of an appeal is extraordinary, and not one that should be readily countenanced without some kind of compelling explanation. For example, I note that the delay in this case greatly exceeds the six month period of delay found to be significant by Karakatsanis J.A., (as she then was), in Doobay v. Diamond, 2011 CarswellOnt 15715, 100 W.C.B. (2d) 148 (C.A.). A full panel of the Court of Appeal subsequently agreed and dismissed a motion for review of the order made by Justice Karakatsanis, and an application for leave to appeal from that panel decision then was dismissed by the Supreme Court of Canada: [2012] S.C.C.A. No. 99.
• In this case, the evidence offered by the defendant to explain his delay is found in his purported letter to the plaintiff dated February 25, 2016, (in which the defendant said an extension to perfect his appeal was required due to “my wife’s health, my health and my family’s situation with seven children), the purported indulgence granted by the plaintiff through the letter dated February 27, 2016, and the relatively short three-sentence paragraph 27 of the defendant’s affidavit sworn on November 7, 2016, (which is buttressed by certain attached medical reports relating to the defendant and his spouse). That paragraph 27 reads, in its entirety, as follows: “The reasons for my delay in perfecting the appeal is (sic) due to my family dynamics which include my wife’s medical condition and mine. We are a family of 9. Attached hereto and marked as Exhibit ‘H’ are medical records.”
• For the reasons outlined above, I regard the letters of February 25 and 27, 2016, as a fiction perpetrated to secure an open-ended extension of time for the defendant to perfect his appeal, if and as necessary, in order to prevent is foreclosure. However, even if the plaintiff had granted an open-ended extension of time for the defendant to perfect his appeal, that in itself provides no explanation as to why the extended time was not used effectively by the defendant to pursue his appeal with diligence.
• Nor am I satisfied that the somewhat vague allusions to “family dynamics” and health concerns, (supported by the medical documentation filed), are sufficient to explain the extremely lengthy delays in this case. In that regard, I think it must be remembered that the appeal is that of the defendant, not his spouse. Moreover, a number of the health documents filed in relation to the defendant are from the summer and fall of 2014, and therefore predate the relevant period of delay, (although there is also dated information from October of 2015, indicating that the plaintiff was experiencing stress affecting his concentration and memory). However, what I find most striking is the demonstrated ability of the defendant, (with the support of his spouse and son Walid), to engage promptly in widespread reactive efforts to thwart progress of the plaintiff’s efforts to bring matters to a conclusion. In particular, when faced with the plaintiff’s most recent efforts to secure vacant possession of 42 Barrydale Crescent, the defendant and his family moved quickly and actively. The plaintiff and his spouse prepared, assembled and filed initial motion material. They also participated in preparing, issuing and serving a new statement of claim. The defendant and his son appeared in court before Justice Grace. The defendant made efforts to retain and consult counsel, contact the Divisional Court office, and enlist the assistance of others to review the Divisional Court file. The defendant and his spouse requested the assistance and involvement of potential mediators, travelled together to and from Mississauga, (where they made several stops related to the litigation), and then prepared and filed supplemental affidavit material. The plaintiff then appeared in court two further times to address the matter. In his oral submissions to me, the defendant also represented that he was quite occupied with his business, which requires a good deal of travel. In my view, all of this activity belies the suggestion that the defendant lacked the ability to attend earlier to his appeal. In my view, he demonstrably had that ability. He simply lacked the inclination. In the result, no satisfactory explanation for the defendant’s extended delay in pursuing his appeal has been provided.

[23] The next required consideration focuses on possible prejudice to the respondent. In that regard:

• As noted above, the plaintiff has tendered evidence, supported by objective third party documentation, indicating that she is being prejudiced by the ongoing delay and frustration of her attempts to secure vacant possession of 42 Barrydale Crescent. In particular, she has been provided with indications that the holder of the first mortgage may be positioning itself to act on its security, and/or that the city of London may be proceeding with a forced sale of the property in an effort to secure payment of unpaid municipal taxes. In either case, a forced sale controlled by parties other than the plaintiff, who may have no incentive to pursue sale of the property on a basis sufficient not only to address their concerns but the plaintiff’s second mortgage as well, poses a very real risk of prejudice to the plaintiff.
• Although the defendant was dismissive of such risks in his oral submissions before me, the reality is that he took no timely and required steps to serve and file any reply material to address and counter such concerns.
• In the result, the plaintiff’s evidence of prejudice is compelling and essentially unchallenged.

[24] Turning next to the merits of the defendant’s appeal, (in the limited sense noted above), little or nothing was presented for my consideration in that regard, apart from Justice Ricchetti’s reported decision and the notice of appeal apparently filed by the defendant. That notice of appeal lists 21 identified grounds of appeal, and I am not in a position to find that each and every one of those grounds has “so little merit that the court could reasonably deny the important right of appeal”.

[25] I turn finally to a consideration of the “justice of the case”, as defined by the Court of Appeal guidance noted above, and in particular, the comments of MacPherson J.A. in Monteith v. Monteith, supra, at paragraph 20. In that regard:

• On balance, in my view the weight of the preceding factors tips strongly, if not overwhelmingly, in favour of denying the defendant further time or opportunity to pursue his long dormant appeal.
• As for other factors that might be relevant in the particular circumstances of this case:
  • I reiterate my general impression that the defendant in this case has been largely reactive rather than proactive, in terms of dealing with the litigation. The defendant generally does not seem intent on moving the dispute forward to a just resolution. He instead seems primarily interested in resisting efforts by the plaintiff in that regard.
  • I have serious concerns about the defendant’s candour, honesty and accuracy in his dealings with the court and its process. For example:
    • For the reasons outlined above, I believe there are strong reasons to believe that he filed his notice of appeal and certificate of evidence with the Divisional Court without effecting proper service.
    • For similarly outlined reasons, I believe there are strong reasons to believe that the defendant participated directly or indirectly in the manufacture and probable court filing of a fictitious written consent by the plaintiff to an indefinite extension of time for the perfection of his appeal.
    • The defendant also filed an affidavit of service in respect to his current motion, asserting that the motion material was given to the plaintiff’s husband on November 7, 2016. However, in my view that is belied by sworn evidence of the plaintiff’s husband that no such service was effected, which in turn is buttressed by the complete failure of the plaintiff, the plaintiff’s husband and the plaintiff’s lawyer to make any arrangements to appear in court the following day, even though subsequent events have made it abundantly clear that they were all quite intent on resisting the defendant’s current request for relief. Moreover, I think the husband’s denial of service, and his corresponding professed ignorance of the current court proceedings, is entirely consistent with his otherwise inexplicable efforts, and corresponding waste of time and money, to journey from Mississauga to London on November 10, 2016, and attend at 42 Barrydale Crescent with a locksmith, in the clear expectation of being able to proceed with execution on the writ of possession.
    • As noted above, the defendant also tendered initial sworn affidavit evidence asserting that he had called and spoken directly with the plaintiff’s lawyer Mr Swaine “to get an explanation” for the notice to vacate, as the matter was “in the Appeals process. The defendant also alleged that, during the same telephone conversation, Mr Swaine indicated in response that he was no longer practising real estate law or representing the plaintiff. In support of those assertions, the defendant tendered a printed record confirming that two outgoing calls were made to Ralph Swaine from the defendant’s home telephone number. However, I note that the relevant printed record is undated. Moreover, the record indicates that the calls in question lasted just 4 seconds and one minute, respectively. Even if the calls to Mr Swaine’s office were made following receipt of the notice to vacate, I find it hard to believe that they were of sufficient duration to cover the various inquiries and assertions alleged by the defendant. Moreover, Mr Swaine’s subsequent appearance and active participation in this matter, after the initial ex parte return of the defendant’s motion, made it quite obvious that the assertions attributed to Mr Swaine by the defendant were entirely untrue. There is no apparent reason why Mr Swaine would have made such inaccurate assertions, and the telephone conversation alleged by the defendant was expressly denied in the plaintiff’s responding material, based on information provided to the plaintiff by Mr Swaine himself. I find, on a balance of probabilities, that the alleged telephone conversation between the defendant and Mr Swaine never took place.
    • There are strong indications that the defendant and his spouse failed to comply with the clear directions by Justice Grace regarding service of his endorsement, and proceeded instead with repeated service of the defendant’s new statement of claim.
    • The defendant definitely failed to comply with the clear direction of Justice Grace regarding preparation and filing of affidavit material concerning the file number and content of the Divisional Court file. In my view, that was not a trivial failing. To the contrary, I think the Divisional Court file almost certainly contains documents, (including the proof of service used by the defendant in filing his initial appeal material, as well as documentation likely filed to ward off administrative dismissal of the appeal for delay), of considerable relevance to this motion.
    • While the above considerations independently made me concerned about the defendant’s good faith, credibility and reliability, such concerns were reinforced by the observations and findings made by other judges of the Superior Court, during the course of this litigation, which called the defendant’s credibility and reliability into question. Instances of that include Justice Price’s observation that the defendant’s prior lawyers obtained an order removing themselves from the record in part because they were concerned about the veracity of information the defendant was providing to them, and Justice Ricchetti’s finding that the defendant was not being truthful when he claimed to be unaware of the mortgage arrangements with the plaintiff.
  • I am very mindful of the reality that denial of the relief requested herein effectively will end the defendant’s appeal, and therefore any basis for imposition of a further stay of the plaintiff’s efforts to enforce her judgment. That in turn effectively will mean eviction of the defendant and his large family from their home. Such an outcome is obviously not one to be inflicted lightly, particularly in the depths of a harsh winter, and at a time of year when finding alternate accommodation on relatively short notice is likely to prove extremely difficult and challenging. However, the defendant has known for years now that the plaintiff was intent on securing relief in relation to the second mortgage. Moreover, as addressed in more detail below, I think the severity of the outcome can be cushioned by an ancillary order prolonging the current temporary stay for a further short period of time, so as to provide the defendant and his family with a reasonable opportunity to secure alternate accommodation.
• In my view, the “justice of the case” therefore supports denial of the defendant’s requested relief in relation to his Divisional Court appeal.

[26] For the above reasons, I dismissed the defendant’s motion for an extension of time to pursue his appeal.

[27] Without such an extension of time, and given my finding that the plaintiff actually has not consented to such an extension, the defendant now will be incapable of taking the formal steps necessary to perfect and pursue his appeal. In the circumstances, I think it appropriate to also make an ancillary order formally dismissing the defendant’s Divisional Court appeal, having Court File No. 15/31 (Brampton).

EXTENSION OF STAY – WRIT OF POSSESSION AND NOTICE TO VACATE

[28] As noted above, if there is to be no appeal of Justice Ricchetti’s judgment granting possession of 42 Barrydale Crescent, then there obviously is no substantive reason to stay the plaintiff’s efforts to enforce her judgment until such an appeal has been decided.

[29] However, as also noted above, the circumstances are such that permitting immediate execution of the plaintiff’s writ of possession and notice to vacate is likely to inflict considerable hardship on the defendant and his large family.

[30] In that regard, I think I am entitled to take judicial notice of certain realities, including the following:

• the likelihood that most individuals and business operations (including those providing rental accommodation) are about to embark on holidays for the next 1-2 weeks;
• the common practice whereby most rental accommodation arrangements contemplate turnover and entry into possession of premises on the first day a month; and
• the added implications of the 2016-2017 calendar, wherein the next “first of the month” falls on New Year’s Day, which is not only a statutory holiday, but one likely to produce a holiday the following day as well, (as the coming New Year’s Day falls on a Sunday).

[31] Pursuant to Rule 1.05 of the Rules of Civil Procedure, I therefore thought it appropriate, when making my orders dismissing the defendant’s motion and his Divisional Court appeal, to impose additional terms and directions whereby the existing temporary stay of the plaintiff’s writ of possession and notice to vacate would be extended to 4pm on February 1, 2017, by which time the defendant and his family are to have vacated the property at 42 Barrydale Crescent.

[32] In my view, that further extension should provide the defendant and his family with sufficient opportunity to secure new accommodation.

[33] Counsel for the plaintiff commendably acknowledged that such a term would be fair and reasonable in the circumstances.

Costs

[34] At the conclusion of the hearing before me on December 19, 2016, and after indicating the substantive outcome, I asked the parties for submissions regarding costs. In that regard:

• Plaintiff counsel requested costs of the motion on a full indemnity basis, which he quantified at $4,800.00, plus an unquantified disbursement for the mileage incurred in his two attendances in London from Mississauga, plus applicable HST; and
• The defendant requested that no costs of the motion be awarded.

[35] After receiving their respective submissions, I took the question of costs under reserve.

[36] Those costs are to be determined pursuant to the court’s broad discretion confirmed by s.131 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as expanded by Rule 57.01 of the Rules of Civil Procedure.

ENTITLEMENT

[37] The plaintiff was successful in defeating the defendant’s motion, and in confirming her right to proceed with execution on her judgment, (albeit with an allowance made to facilitate a transition of the defendant and his family to new accommodation). Having regard to that success, as well as the general indemnity principle, I see no reason why costs should not follow the event.

SCALE

[38] In the particular circumstances of this case, I also think it appropriate to address such costs on a full indemnity basis.

[39] I do not do so on the basis of any relevant settlement offers, as it seems no such offers were made. In the circumstances, neither Rule 49.10 nor Rule 49.13 applies to this situation.

[40] However, as noted by plaintiff counsel, standard mortgage provisions permit full recovery of legal fees incurred to enforce the mortgage.

[41] In this case, the particular second mortgage agreement did not form part of the evidentiary record before me. I nevertheless was provided with indirect confirmation that it contained the standard provisions concerning full recovery of enforcement costs, as Justice Ricchetti referred to the plaintiff’s entitlement in that regard in paragraph 52 of his reported decision.

[42] Moreover, or in the alternative, I think the conduct of the defendant in this matter warrants an award of costs on an elevated scale.

[43] In saying that, I am mindful that, although the court has a broad discretion in relation to costs, our appellate courts repeatedly have emphasized that awards of costs on a partial indemnity basis generally strike the proper balance as to the burden of costs that should be borne by the “winner”, and that elevated cost awards should be reserved for “rare and most exceptional” cases. See, for example, Foulis v. Robinson (1987), 21 O.R. (2d) 179 (C.A.), and Isaacs v. MHG International Ltd., 1984 1862 (ON CA), 45 O.R. (2d) 693 (C.A.)

[44] The sort of conduct meriting elevated cost awards has been described in various ways.

[45] In Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at p.134, McLachlin J. indicated that elevated cost awards are warranted “only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”.

[46] In Mortimer v. Cameron (1994), 1994 10998 (ON CA), 17 O.R. (3d) 1 (C.A.), and McBride Metal Fabricating Corp. v. H&W Sales Co. (2002), 2002 41899 (ON CA), 59 O.R. (3d) 97, whose principles were echoed and emphasized again by the Court of Appeal in Davies v. Clarington, 2009 ONCA 722, [2009] O.J. No. 4236 (C.A.), conduct warranting elevated cost awards was described as “reprehensible”, “egregious”, or “acts that clearly indicated an abuse of process”, justifying enhanced costs as a form of chastisement.

[47] In this case, for the reasons I have noted, I believe the defendant regrettably engaged in that sort of conduct by his misrepresentations concerning service, his sworn allegations concerning a telephone call with plaintiff counsel that never occurred, his reliance on a fabricated letter of consent attributed to the plaintiff, and his failure to comply with the directions of Justice Grace in numerous respects.

[48] Such conduct needs to be discouraged.

[49] For all these reasons, I think awarding costs on an elevated scale, (beyond those normally awarded on a partial indemnity basis), and on a full indemnity basis in particular, is appropriate in this case.

QUANTIFICATION

[50] An award of costs on a full indemnity basis does not entail accepting the proffered “base figures” of a successful party without question.

[51] The court is still obliged to consider the discretionary factors set forth in Rule 57.01, as well as the “overriding principle of reasonableness” as applied to the factual matrix of the case, pursuant to the ultimate “cross check” required by such authorities as Boucher, Moon and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 1042 (ON CA), 75 O.R. (3d) 638 (C.A.), and Anderson v. St. Jude Medical Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4^th) 557 (Ont.Div.Ct.).

[52] In this case, having regard to applicable discretionary factors set forth in Rule 57.01(1):

• I already have addressed the principle of indemnity, to some extent, in the context of my remarks concerning entitlement.
• The indicated hourly rate of Mr Swaine was appropriate, given his 37 years at the bar.
• The indicated time spent in preparation and attendance for this matter also seems appropriate in the circumstances.
• As for Rule 57.01(0.b) and its mandated consideration of the amount of costs that an unsuccessful party could reasonably expect to pay, the defendant candidly indicated that he had intended to request an order directing the plaintiff to pay him costs of $6,489.75, despite the fact that the defendant was self-representing throughout the course of the motion. The cost request of the professionally represented plaintiff obviously was more modest.
• There was substantial complexity to the matter, at least insofar as the underlying factual matrix was concerned.
• The issues raised by the application were important to the parties. The plaintiff felt strongly that the security underlying her mortgage loan may be in jeopardy. The defendant stood to lose his residence.
• In my view, litigation of the motion was complicated and lengthened by conduct of the defendant. In particular, had the defendant taken more timely and effective steps to serve the plaintiff and/or her lawyer properly with his motion material, the number of court attendances required to deal with the motion almost certainly would have been reduced.

[53] On the whole, having regard to the above considerations, the circumstances of the case, and the ultimate “cross-check” described above, (to ensure the overriding principle of reasonableness), I think justice will be done in this matter by an order directing the defendant to pay the plaintiff the all-inclusive sum of $5,000.00 in relation to the motion.

Conclusion

[54] For the reasons outlined above, a formal order should go that includes the following operative provisions:

a. This court orders that the temporary stay of the plaintiff’s writ of possession dated October 26, 2016, and notice to vacate dated November 2, 2016, is extended to 4pm on February 1, 2017;

b. This court orders that the defendant’s motion herein is otherwise dismissed;

c. This court orders that the defendant’s Divisional Court appeal, having Court File No. 15/31 (Brampton), is dismissed for delay; and

d. This court orders that the defendant shall forthwith pay the plaintiff her costs of the motion, on a full indemnity basis, fixed in the all-inclusive sum of $5,000.00.

[55] Provided the substantive provisions of the draft order prepared by the plaintiff for issue and entry correspond to the lettered sub-paragraphs in paragraph 52, supra, the final order may be issued and entered without the need for the defendant’s approval or an appointment to settle the order.

[56] Once the order has been issued and entered, plaintiff counsel shall also provide the Divisional Court office in Brampton with copies of the issued and entered order and this endorsement, to facilitate and confirm formal dismissal of the appeal in Divisional Court File No. 15/31 (Brampton).

Justice I. F. Leach

Justice I. F. Leach

Date: December 21, 2016