



COURT OF APPEAL FOR ONTARIO

CITATION: Refaeli v. Salomon, 2016 ONCA 862

DATE: 20161116

DOCKET: M46902 & M46926

Lauwers J.A. (In Chambers)

BETWEEN

Tamar Refaeli also known as Tami Refaeli

Applicant (Responding Party/
Moving Party by way of cross-motion)

and

Amnon Salomon

Respondent (Moving Party/
Responding party by way of cross-motion)

Frank Lento, for the responding party/moving party by
    way of the cross-motion

Amnon Salomon, acting in person

Raphael Eghan, appearing as
amicus curiae

Heard: October 27, 2016

ENDORSEMENT

[1]

Amnon Salomon moves to extend the time within which he can appeal a
    vesting order granted by Diamond J. of the Superior Court of Justice on August
    5, 2016. Tamar Refaeli, the responding party, moves to dismiss Mr. Salomons motion
    and, in the alternative, she seeks an order for security for costs of the
    appeal. I am obliged to bring some order into what has become a complicated
    morass, largely because of Mr. Salomons persistent refusal to take
    seriously his responsibilities under the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, and this courts orders.

[2]

This is a dispute about the ownership of a property located at 31
    Felicia Court in Thornhill, Ontario. In his endorsement, dated August 10, 2015,
    Diamond J. recognized an Israeli consent final judgement that obliged Mr. Salomon
    to transfer title to the property to Ms.

Refaeli.
    In his letter, dated October 18, 2016, Israeli counsel for Ms. Refaeli provides
    additional context:

The court should be made aware that the consent judgment was
    made in the context of an inheritance dispute amongst all of Amnons siblings,
    namely my client, her brother and sister and Amnon.

[3]

I note that neither party takes issue with the jurisdiction of the
    Israeli court over the inheritance dispute.

[4]

Mr. Salomon did not appeal Diamond J.s recognition order on a timely
    basis.

[5]

Instead, about a year later in February 2016, Mr. Salomon began a new
    action in Israel to set aside the settlement agreement that was the basis of
    the Israeli consent judgment recognized by Diamond J. Mr. Salomon obtained from
    the Israeli court an
ex parte
interim order staying the consent final
    judgment. On June 25, 2016, the Israeli court continued the interim stay order
    on conditions that, according to Israeli counsel for Ms. Refaeli, Mr. Salomon
    did not meet. As of October 2016, her Israeli counsel advises that the matter
    is still pending in the Israeli court. While Mr. Salomon proffers various
    explanations for what is going on in respect of the litigation in Israel, he has
    provided no evidence to substantiate these claims. On the evidence, it appears
    that Mr. Salomon is taking the same desultory approach to the Israeli
    proceedings as he is taking to the appeal proceedings in this court.

[6]

Mr. Salomon then filed a notice in this court requesting an extension of
    the time to appeal the recognition order and asked for a stay of the order. Ms.
    Refaeli brought a responding motion seeking an order for security of costs of
    the appeal. On June 29, 2016, Hourigan J.A. dealt with these motions. He
    granted Mr. Salomons request for an extension of time to appeal the recognition
    order of Diamond J. and ordered the appeal to be perfected by July 29, 2016. He
    refused Mr. Salomons request for a stay of the recognition order. He adjourned
    Ms. Refaelis motion for security for costs to July 12, 2016 to enable Mr.
    Salomon to file responding materials.

[7]

On July 12, 2016, Juriansz J.A. heard Ms. Refaelis motion for security
    for costs. In respect of that motion, Mr. Salomon says he was confused about
    the start time for the court and did not appear until court had adjourned for
    the day. Juriansz J.A. ordered security for costs in the amount of $25,000 to
    be posted by the perfection date, July 29, 2016. A written motion by Mr.
    Salomon asking Juriansz J.A. to reconsider was addressed on July 29, 2016. Juriansz
    J.A. refused to reconsider his security for costs order in light of the new material
    filed by Mr. Salomon, stating: I am not persuaded the order for security for
    costs should not have been granted.

[8]

Mr. Salomon did not perfect the appeal of the recognition order by July
    29, 2016, as provided in the endorsement of Hourigan J.A. and did not provide
    security for costs as ordered by Juriansz J.A. He also did not pay outstanding
    cost awards.

[9]

Mr. Salomon refused to transfer the property to Ms. Refaeli, relying on
    the effect of the Israeli stay. By endorsement, dated August 5, 2016, Diamond
    J. issued an order vesting the property in Ms. Refaeli.

[10]

I accept counsel for Ms. Refaelis assertion that Diamond J. was aware
    of the ongoing proceedings in the Israeli court because correspondence with the
    Israeli law firm representing Ms. Refaeli was part of the materials filed on
    the vesting motion. I also accept that the argument for whether the vesting
    order should be issued turned on the impact of the Israeli interim stay. I note
    that, apart from a letter from Israeli counsel for Ms. Refaeli, there is no
    formal documentation from the Israeli court indicating that the original
    decision was in fact formally stayed. Mr. Salomon provided no such
    documentation. Perhaps the Israeli stay was the basis upon which Hourigan J.A.
    noted in his endorsement, with respect to the stay request, I am satisfied
    that there is some merit to the appeal, although he dismissed Mr. Salomons
    motion for a stay.

[11]

On September 6, 2016, Mr. Salomon brought a motion for an extension of the
    time to appeal the vesting order for a period of 30 days. When the motion came before
    MacFarland J.A. on September 16, 2016, Mr. Salomon requested an
    adjournment. MacFarland

J.A. granted the
    adjournment and set October 27, 2016 as peremptory to Mr. Salomon, and also ordered
    him to pay costs in the amount of $750, inclusive of disbursements and HST. He
    has not paid the costs award.

[12]

Before me, Mr. Salomon asks that the perfection date be postponed until
    30 days after the date on which Diamond J. releases the transcript as well as
    the audio recording of the motion heard before him on August 5, 2016. Mr.
    Salomon asserts that Diamond J. has twice refused to release the transcript. I
    note that Mr. Salomon takes the position, in his material, that his appeal of
    the recognition order is still pending, despite the passage of the extended
    perfection date, his failure to post security for costs, and his failure to pay
    outstanding costs awards.

[13]

To regularize the proceedings, it would be necessary for me to further
    extend the perfection date of the appeal of the recognition order from the date
    of July 29, 2016 previously ordered by Hourigan J.A., and to extend the time
    for Mr. Salomon to appeal the vesting order of August 5, 2016. It is not
    clear whether Mr. Salomon is treating the appeal from the vesting order as an
    entirely new appeal, but it is plain that the appeal of the vesting order rests
    on the vitality of the recognition order, which in turn awaits the decision of
    the Israeli court. Perhaps Mr. Salomon has only requested from me an extension
    in respect of the time to file the appeal of the vesting order in order to
    evade the obligation to provide security for costs as ordered by Juriansz J.A. But
    undeniably both appeals would need to be before the same panel as a
    consolidated appeal for Mr. Salomon to be successful.

[14]

I am obliged to consider the following factors in exercising discretion
    to extend the time for perfecting the first appeal on the recognition order and
    for filing a notice of appeal respecting the vesting order out of time:

·

whether the applicant had a
bona fide
intention to appeal
    before the expiration of the appeal period;

·

any explanation for the delay in filing;

·

any prejudice to the responding party caused by the delay; and

·

the justice of the case including the merits of the proposed
    appeal.

See
Issasi v. Rosenzweig
, 2011 ONCA 112, 277
    O.A.C. 391, at para. 4.

[15]

I will deal with the appeals in tandem. In respect of the first factor, I
    am in no position to assess Mr. Salomons initial intention to appeal the
    recognition order, given the decision by Hourigan J.A. to extend the time
    within which he could perfect it. I note, however, that Mr. Salomon did not
    perfect the appeal on a timely basis, provide security for costs, or pay
    outstanding cost orders. He provides no explanation for his failure to do so.

[16]

It is quite plain that Mr. Salomon intended to appeal the vesting order
    before the expiration of the appeal period. He moved quickly to extend the time.

[17]

As to prejudice, Ms. Refaeli argues that she took steps relying on both
    the recognition order and the vesting order to discharge encumbrances on the
    property. Further, the vesting order has been registered on the property. Relying
    on
Re Regal Constellation Hotel Ltd
. (2004), 71 O.R. (3d) 355 (C.A.),
    she contends that by being registered on the property the attributes of the
    vesting order as an order have been spent, which means that Mr. Salomons
    appeal is now moot. I do not view the law as quite so absolute, especially in
    the absence of the interests of any innocent third party, the existence of
    appeal rights, and the existence of the reconsideration possibility based on r.
    59.06 of the
Rules of Civil Procedure
,
    where it applies
. However, I do not need to determine this question
    to decide the motion.

[18]

As for the justice of the case, I agree with Hourigan J.A. that there
    might be something to the appeals based on the Israeli proceedings. There is an
    outstanding recognition order. However, there is no final order of an Israeli
    court disposing of Mr. Salomons challenge to the Israeli order that
    Diamond J. recognized and on which the Israeli court has placed an interim
    stay.

[19]

However, I am especially troubled by Mr. Salomons utter disregard
    of the
Rules of Civil Procedure
and orders of this court
. Put bluntly, he wants to keep the appeal
    ball rolling without any personal investment. He acknowledges in his material that
    he was granted an extension to file an appeal of the recognition order, but
    does not explain why he failed to perfect the appeal on time, pay the security
    for costs order, or pay the outstanding costs awards. I infer he thought he
    could avoid those obligations by simply moving to extend the time to appeal the
    vesting order but that will not avail.

[20]

Because Mr. Salomons actions in this court have been abusive of this
    courts indulgences and orders, I assess the justice of the case to be in Ms. Refaelis
    favour.

[21]

In summary, while Mr. Salomon might have had a
bona fide
intention to appeal the recognition order before the expiration of the appeal
    period and did have an intention to appeal the vesting order, he has provided
    no explanation for his later delay in perfecting the recognition appeal. There
    is some evidence of prejudice to Ms. Refaeli caused by his delay. The justice
    of the case favours Ms. Refaeli.

[22]

For these reasons I dismiss Mr. Salomons motion and fix costs in the
    amount of $5,000, inclusive of disbursements and applicable taxes, payable by
    Mr. Salomon to Ms. Refaeli within 30 days of the date of this order.  In light
    of this order, I need not address Ms. Refaelis alternative request for
    security for costs, which I dismiss as redundant.

P. Lauwers J.A.


