



COURT OF APPEAL FOR ONTARIO

CITATION: Samra v. 7544405 Canada Inc., 2017 ONCA 953

DATE: 20171206

DOCKET: M46891 (C62026)

Watt, Pepall and Miller JJ.A.

BETWEEN

George Samra

Plaintiff/Respondent

and

7544405 Canada Inc. and Stella Chinyere Kemdirim

Defendants/Appellants

Stella Kemdirim, acting in person

Miriam Vale Peters, for the respondent

Heard: October 27, 2017

REASONS FOR DECISION

[1]

Ms. Kemdirim and 7544405 Canada Inc. (Kemdirim and 7544405) seek to
    review the order of Roberts J.A. refusing to extend the time to file their
    earlier motion to review and set aside the July 20, 2016 order of Laforme J.A.,
    and to grant a stay of his order and the summary judgment granted by Warkentin
    J. on March 14, 2016.

[2]

The genesis of these proceedings is the default of Kemdirim and 7544405
    under two mortgages placed on several properties. George Samra obtained summary
    judgment against Kemdirim and 7544405 due to their default under the mortgages.
    He was also awarded costs fixed at $17,000 inclusive of HST and disbursements.

[3]

Kemdirim and 7544405 appealed.

[4]

Samra moved before Laforme J.A. for an order for security for costs. He
    granted the order, which required Kemdirim and 7544405 to pay $37,000 into
    court as security for costs within 30 days, failing which their appeal of the
    summary judgment would be dismissed. He also ordered Kemdirim and 7544405 to
    pay Samra his costs of the motion fixed at $3,500 inclusive of HST and
    disbursements.

[5]

Kemdirim and 7544405 subsequently moved before Roberts J.A. seeking an
    order to extend the time within which they could serve and file a motion to
    review the order of Laforme J.A., a stay of that order, and a stay of the
    summary judgment.

[6]

Roberts J.A. granted an extension of time to August 29, 2016 to post
    security and dismissed the remainder of the motion.

[7]

Kemdirim and 7544405 have not yet made any payments towards the order
    for security for costs or any costs orders made in any of the prior
    proceedings.

[8]

Despite Ms. Kemdirims earnest submissions on behalf of herself and 7544405,
    we see no basis upon which we should grant the orders sought.

[9]

To begin, Kemdirim and 7544405 admit default under the mortgages,
    although they query the precise amounts of the default. The evidence before the
    judge on the motion for summary judgment revealed no genuine issue requiring a
    trial. The reasons for judgment on that motion reveal no basis upon which a
    reviewing court could interfere.

[10]

Prior
    to the appearance before Laforme J.A., the Registrar administratively dismissed
    the appeal by Kemdirim and 7544405 from the summary judgment for failure to
    perfect it in accordance with the rules.  Kemdirim and 7544405 moved before the
    Laforme J.A.to set aside the administrative dismissal and stay the summary
    judgment pending appeal. It was in response to this motion that Samra sought
    and obtained an order for security for costs.

[11]

Laforme
    J.A. restored the appeal but ordered security for costs because he was of the
    view that the appeal was without merit and that Kemdirim and 7544405, already
    in default under the mortgages, lacked the means to pay the costs of an
    unsuccessful appeal. Kemdirim and 7544405 have been unable to persuade us that
    this decision is cumbered by error.

[12]

Roberts
    J.A., whose order refusing an extension of time Kemdirim and 7544405 ask us to
    review, dismissed the motion on two grounds. The first, echoing what the first
    chambers judge said, was that the appeal was wholly without merit, thus frivolous
    and vexatious.  The second was that the justice of the case did not warrant the
    order sought. In refusing the extension of time sought, Roberts J.A. enumerated
    the relevant factors that informed her decision.  She acknowledged that
    Kemdirim and 7544405 had intended to seek a review of the order within the
    required time; that the delay was brief and that the delay was adequately
    explained. Then she focused on the justice of the case. Her consideration of
    this factor reveals no legal error, no misapprehension of relevant evidence and
    is plainly reasonable. We see no basis on which to interfere.

[13]

It
    followed that the request for the stay of the security for costs order was
    moot.  Roberts J.A. then correctly considered and applied the principles
    applicable to the granting of a stay of Warkentin J.s summary judgment. 
    Again, we see no basis on which to interfere.

[14]

The
    motion to review the order of the second chambers judge is dismissed with costs
    of $3,000, inclusive of disbursements and all applicable taxes, payable to
    Samra within 30 days of the release of this decision.

David
    Watt J.A.
S.E. Pepall J.A.
B.W. Miller J.A.


