



COURT OF APPEAL FOR ONTARIO

CITATION: Hussain v. Muyal, 2013 ONCA 635

DATE: 20131018

DOCKET: C56996

Weiler, Gillese and Lauwers JJ.A.

BETWEEN

Alamgir
    Hussain

Appellant

and

Moses
    Muyal, Myer Botnick and Moshe Ehrentreu

Respondent

Alamgir Hussain, in person

Aaron Postelnick, for the respondent Myer Botnick

Michael Katzman, for the respondent Moshe Ehrentreu

Chris Donovan, for Moses Muyal

Heard and released orally: October 16, 2013

On appeal from the order of Justice Sidney N. Lederman of
    the Superior Court of Justice, dated April 15, 2013.

ENDORSEMENT

[1]

The motions judge dismissed the appellants action on the basis that it
    was an abuse of process. In so doing he exercised the courts discretion to
    control its own process. Such discretionary orders are reversible where the
    court misdirected itself or came to a decision that is so clearly wrong it
    amounts to an injustice or gives no or insufficient weight to relevant
    considerations.
Penner v. Niagara (Regional Police Services Board)
,

2013 SCC 19 (CanLII) at para. 27.

[2]

The appellant submits that the motions judge erred in
    holding the appellants case was a collateral attack on prior orders pertaining
    to the mortgage action. He submits that his claim arose out of conduct that
    post-dated the filing of the original mortgage action and related to the monies
    realized on the sale of the property. The motions judge dealt with this
    complaint in his reasons. He indicated that the appellants remedy was an
    assessment under the
Mortgages Act,
a remedy the appellant had
    initiated and then adjourned
sine die.

[3]

The appellants real complaint is that the failure to credit him with a
    mortgage payment and to correct the interest calculation in a timely fashion
    prevented him from redeeming the mortgage. The appellant could have raised this
    issue at any time throughout the mortgage proceedings. He did not.

[4]

The motions judges decision is not clearly wrong. Nor, despite the submissions
    of the appellant, are we satisfied that the motions judge failed to give
    sufficient weight to any relevant consideration. The appeal is therefore
    dismissed.

[5]

Costs to the respondents inclusive of all disbursements and applicable
    taxes are as follows: Muyal $1,000; Botnich $500; and Ehrentreu $200.

K.M. Weiler J.A.

E.E. Gillese J.A.

P. Lauwers J.A.


