



COURT OF APPEAL FOR ONTARIO

CITATION: Iqbal v. Mansoor, 2019 ONCA 110

DATE: 20190214

DOCKET: C65591

Pepall, Trotter and Harvison Young JJ.A.

BETWEEN

Musharraf Iqbal

Applicant (Appellant)

and

Sohail Khawaja Mansoor and Gold International
    Inc.

Respondents (Respondents)

Musharraf Iqbal, acting in person

Paul Mand, for the respondents

Heard and released orally: February 8, 2019

On appeal from the
    order of Justice Gregory M. Mulligan of the Superior Court of Justice, dated
    June 22, 2018, with reasons reported at 2018 ONSC 3949.

REASONS FOR DECISION

[1]

The appellant commenced an action against the respondent for, among
    other things, damages of approximately $313,000 for breach of an agreement relating
    to the development of a property.

[2]

Pursuant to a consent order, the action was referred to arbitration. In
    that order, no provision was made for costs. On January 25, 2017, the
    arbitrator found in favour of the appellant and awarded him damages of
    $255,431. He invited submissions on costs and subsequently awarded the
    appellant costs of $20,000.

[3]

The respondent sought leave to appeal the award of the arbitrator and
    the appellant brought a cross-application to confirm the award pursuant to the
    provisions of the
Arbitration Act, 1991
, S.O. 1991, c. 17
.

[4]

On February 5, 2018, the respondents application for leave was
    dismissed and the appellants application for confirmation was granted:
Mansoor
    v. Iqbal
, 2018 ONSC 884. The applications judge then invited submissions
    on costs. The appellant claimed just over $100,000, largely for costs leading
    up to and including the arbitration.

[5]

On March 4, 2018, the applications judge rejected that request, stating that
    the costs up to and including the arbitration had already been accounted for by
    the arbitrator whose decision had been confirmed. However, the applications
    judge did award the appellant costs of $2,500 for the leave and confirmation
    motions.

[6]

The appellant then commenced a new application again seeking costs of
    just over $100,000.

[7]

On June 22, 2018, the application judge dismissed the new application on
    the basis that it was in essence an attempt to do indirectly what the appellant
    had been unable to do directly. The application judge had already dealt with
    the issue of costs associated with the parties dispute that was subject to
    arbitration in the March 4, 2018 order. He also refused to consider the appellants
    fresh evidence in the form of an email from the arbitrator stating that he had
    made his decision on costs, had no further jurisdiction, and could not award
    costs for any efforts prior to the arbitration or for the appeal. The
    application judge noted that this evidence could have been available when he
    had heard the earlier submissions as to costs made by the appellant. The
    application judge awarded $2,500 in costs to the respondent.

[8]

In dismissing the application, contrary to the submissions of the appellant,
    the application judge was not hearing an appeal of his prior order. There was
    no reason for him not to hear the June 22, 2018 new application.

[9]

The appellant subsequently filed a notice of appeal of the application
    judges June 22, 2018 order to this court. He asked that the order be set aside
    and that the costs award he was requesting be granted. He did not seek to
    appeal the March 4, 2018 order and had already obtained an order confirming the
    arbitrators award that addressed costs.

[10]

On
    October 11, 2018, this courts Senior Legal Officer wrote to the appellant
    advising that his appeal seemed to be only as to costs and leave to appeal must
    be granted before the appeal could proceed. The appellant disagreed. He did not
    seek leave to appeal, and has proceeded with his appeal.

[11]

In
    our view, the appellant was in error. An appeal of a costs decision requires
    leave. In spite of being advised of this deficiency, the appellant chose to
    proceed. In the absence of leave, this court has no jurisdiction and the appeal
    is quashed.

[12]

The
    appellant is to pay the respondent costs of the proceedings in this court fixed
    in the amount of $2,500, inclusive of disbursements and applicable tax.

S.E.
    Pepall J.A.

G.T.
    Trotter J.A.

Harvison
    Young J.A.


