



COURT OF APPEAL FOR ONTARIO

CITATION: Iqbal v. Mansoor, 2021 ONCA 927

DATE: 20211222

DOCKET: M52934 (C65591)

Tulloch J.A. (Motion Judge)

BETWEEN



Musharraf
Iqbal

Plaintiff

(Appellant/Moving
Party)

and

Sohail
Khawaja Mansoor and Gold International Inc.

Defendants

(Respondents/Responding
Parties)

Musharraf Iqbal, acting in person

No one appearing for the responding
parties

Heard: November 22, 2021 by video conference

REASONS
FOR DECISION

[1]

The applicant, Musharraf Iqbal, brings this
motion pursuant to r. 3.02(2) of the
Rules of Civil Procedure,
R.R.O
1990, Reg. 194. The applicant seeks an order for an extension of time to pursue
a motion to set aside the order of Coroza J.A., dated August 13, 2020, under s.
7(5) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43. In his
decision, Justice Coroza declined to grant the applicant an extension of time to
seek leave to appeal from two costs decisions, which were made in the Superior
Court of Justice in 2018.

[2]

Pursuant to r. 61.16 of the
Rules of Civil
Procedure
, the time to bring such a motion is within four days of the
order. The appellant submits that the delay in bringing this motion to set
aside the order of Coroza J.A. was mostly as a result of his ignorance of the
proper procedures to follow. He also submits that he mistakenly believed the
COVID-19 suspension was still in place, and that he tried to retain a lawyer
who was ultimately of no assistance.

[3]

The respondents have not submitted any responding
materials, nor has anyone appeared on their behalf to oppose the motion.

Background

[4]

The parties went through proceedings before an
arbitrator in which the applicant was successful. He was awarded costs of the
arbitration hearing but the arbitrator did not make a costs order for the
proceedings prior to the actual hearing. The total costs to the applicant for
the proceedings amounted to $109,817.

[5]

Following the arbitrators decision, the
respondents commenced an application in the Superior Court, in which they
sought an order granting them leave to appeal from the decision of the
arbitrator. In response, the applicant commenced a counter-application seeking
an order upholding the arbitrators decision. In February 2018, the application
judge dismissed the respondents application and granted the applicants
counter-application.

[6]

The applicant made costs submissions before the
application judge and asked for a total of $109,817 in costs for the
proceedings, indicating to the court that the arbitrator had not addressed the
issue of the costs of the proceedings, but had only awarded costs for the
actual hearing.

[7]

The application judge declined to award the
applicant his full arbitration costs in the amount of $109,817, finding that
the costs award he had been granted by the arbitrator covered the entire
proceeding. Upon obtaining confirmation from the arbitrators office that the
costs award was not in fact for the entire proceeding but only for the
arbitration hearing, the applicant brought a motion for the remaining $109,817
in costs. The application judge determined that the applicant sought to appeal
his earlier refusal of costs and that he therefore lacked jurisdiction; the
motion was dismissed.

[8]

The applicant then tried to appeal the
application judges decision to this court, but because he had not first
obtained leave, the court lacked jurisdiction. The panel noted that it was an
error for the application judge to find that he did not have jurisdiction to
hear the motion. The applicant then tried to seek leave from the Supreme Court
of Canada, which was dismissed. The applicant also tried to seek leave to
appeal in the Superior Court, but the application was dismissed for lack of
jurisdiction. The applicant subsequently brought a motion before this court for
an extension of time to bring a motion for leave to appeal the costs order,
which was heard before Coroza J.A. and dismissed.

Analysis

[9]

The overarching principle when considering a
motion for an extension of time is that an extension should be granted if the
justice of the case requires it:
Frey v. McDonald
(1989), 33 C.P.C.
(2d) 13 (Ont. C.A.).

[10]

The relevant factors were set out in
Kefeli
v. Centennial College of Applied Arts and Technology
, 2002 CanLII 45008 (ON
CA), at para. 14:

1.

The length of and explanation for the delay;

2.

Whether the respondent will suffer prejudice;

3.

The merits of the appeal; and

4.

Whether the justice of the case requires it.

[11]

As stated earlier, the applicant wanted to move
to set aside Coroza J.A.s decision but failed to do so within the prescribed
period because he mistakenly believed the COVID-19 suspension was still in
place. He also tried to retain a lawyer who was ultimately of no assistance.

[12]

The applicant argues that the proposed appeal
has merit, that the respondents will not suffer any prejudice, and that an
extension of time is in the interests of justice. On the merits, he argues that
the finding that the costs award he was granted covered the entire proceedings
was clearly wrong, in light of the confirmation from the arbitrators office.
With respect to the application judges finding that he did not have
jurisdiction to hear the motion after this information was discovered, our
court determined that this was also an error. There is no prejudice to the
respondents in the sense that witnesses cannot be called or evidence has been
destroyed. It is in the interests of justice to have the $109,817 costs issue
determined on its merits.

[13]

From the recent history of this litigation, I have
no doubt that the applicant had every intention to appeal the decision of Coroza
J.A. Unfortunately, it took over a year to do so. Accepting his explanation for
the delay, I still must consider whether the respondents will suffer any
prejudice, whether there is any merit to an appeal, and if so, whether the
justice of the case warrants granting the extension.

[14]

There is no doubt that if an extension was
granted, the respondents would suffer prejudice. The respondents are no longer
represented by counsel. A significant amount of time has elapsed since Justice
Corozas decision was rendered. Should an extension be granted, the respondents
would now have to turn their minds to responding again to the applicant, thus
incurring more costs.

[15]

When it comes to the merits of the appeal, this
is a case in which the parties elected to proceed by way of arbitration. During
the arbitration process, both parties were obliged to put their entire claim
before the arbitrator, including all the relevant costs. For whatever reasons,
the applicant neglected to do so, and instead claimed only for his damages,
without factoring in the entire costs of the proceedings. The decision of both
parties to opt out of the court process and to proceed before an arbitrator
entailed that the entire claim, including the costs of the proceedings, would
be placed before the arbitrator. Once an arbitrator decides the outcome, the
matter is no longer within the jurisdiction of the court, provided there was no
legal or procedural errors.

[16]

In all the circumstances, I am of the view that
even if an extension of time was granted, the applicants case lacks sufficient
justification to grant an extension of time. In my view, notwithstanding the
submissions of the applicant, the justice of the case does not warrant this
court exercising its discretion to grant the extension of time to serve the notice
of leave to appeal.

[17]

Accordingly, the motion is dismissed.

M.
Tulloch J.A.


