



COURT OF APPEAL FOR ONTARIO

CITATION: Kalair v. Central 1 Credit Union, 2018 ONCA 434

DATE: 20180508

DOCKET: M48427 (M48292)

LaForme, Watt and Nordheimer JJ.A.

BETWEEN

Omar Farooq Kalair

Plaintiff (Appellant/Moving Party)

and

Central 1 Credit Union
and UM Financial Inc.

Defendants (
Respondent/Responding Party
)

Kenneth E. Wise, for the moving party

Doug Smith and Alannah Fotheringham, for the responding
    party

Heard: May 4, 2018

By the Court:

[1]

Mr. Kalairs motion for an extension of time to
    file a notice of appeal  which he had missed by 2 weeks - was dismissed by
    Roberts J.A. on October 11, 2017. Justice Roberts was satisfied that Mr. Kalair
    had formed the requisite intention to appeal, provided an adequate explanation
    for the short delay, and there was no prejudice occasioned to the respondent
    from the delay. However, she concluded that Mr. Kalair had failed to meet the
    admittedly low threshold of demonstrating that there was some merit to the
    proposed appeal such that the court should not reasonably deny the important
    right of appeal.

[2]

Pursuant to s. 7(5) of the
Courts of
    Justice Act
,
R.S.O. 1990, c. C.43,
Mr. Kalair moved before this court to review the decision of Roberts
    J.A. and set aside her order or vary it. As additional support for this review,
    and by way of an affidavit dated April 26, 2018 contained in a supplementary
    motion record filed April 27, 2018, Mr. Kalair outlines proposed merits of the
    appeal that were not before Roberts J.A.

[3]

At the outset, the respondent, in very brief
    submissions, objected to the April 26
th
affidavit being considered
    on this review, arguing it was fresh evidence improperly before us. We heard
    full argument from Mr. Kalairs current counsel on both the issue of the
    alleged fresh evidence and on the merits of the review. We dismissed his motion
    for review and advised that reasons would follow. These are the reasons.

[4]

Mr. Kalairs original position on the merits of his appeal described in
    his original affidavit dated November 17, 2017 that Roberts J.A. considered
    were that:

[T]he grounds for appeal essentially are based
    on the severely lacking evidence that was before [the motion judge]. Had that
    evidence been properly produced the outcome of my case would likely have been
    different.

[5]

In Mr. Kalairs April 26
th
affidavit
    he provides particulars of merits of the appeal that were not before Roberts
    J.A.. In the affidavit he claims that much of the legal merits of [his]
    appeal were not known to [him] and [his] new counsel until more recently when
    [his] previous counsel provided information and parts of the file.

[6]

A full panel of this court owes considerable
    deference to a chambers judges decision regarding whether to grant an
    extension of time:
R. v. Gatfield
, 2016 ONCA
    23, at para. 11.

[7]

The conclusory statements in the affidavit
    before Roberts J.A. do not support the argument that she may have made an error
    in dismissing Mr. Kalairs motion. To the contrary, Roberts J.A. addressed all
    the relevant factors and properly applied those factors to the evidentiary
    record before her. In particular, she concluded there was no merit to the
    appeal. We agree.

[8]

The findings on the summary judgment motion that the applicable
    limitations period had expired, and that Mr. Kalair did not have standing to
    advance claims on behalf of his companies, are unassailable. His complaints, on
    his proposed appeal, about undertakings and refusals not being answered, and
    that his motion to amend the statement of claim to add the Receiver was not
    heard, are of no consequence to these two central findings

[9]

The end result is that Mr. Kalair has failed to
    provide us with any reason why we should interfere with the exercise of
    discretion by Roberts J.A. His most recent affidavit filed on this motion,
    aside from its propriety, does not assist him; it too fails to demonstrate that
    there is any merit to his proposed appeal.

[10]

Mr. Kalairs motion for review is therefore dismissed.
    The respondent is awarded costs of this motion fixed in the amount of $5,000
    inclusive of disbursements and HST.

Released: HSL  MAY 8 2018

H.S. LaForme J.A.

David Watt J.A.

I.V.B. Nordheimer
    J.A.


