



COURT OF APPEAL FOR ONTARIO

CITATION: Khorramshahi v. Iranpour, 2022
    ONCA 210

DATE: 20220311

DOCKET: M53255

Roberts J.A. (Motions Judge)

BETWEEN

Farid Khorramshahi

Moving Party

and

Shadab Iranpour

Responding Party

Farid Khorramshahi, acting in person

Shadab Iranpour, acting in person

Heard: March 8, 2022 by video
    conference

REASONS FOR DECISION

[1]

Mr. Khorramshahi seeks an
    order extending the time to file his notice of appeal from the order of the
    motion judge Dennison J. dated December 8, 2021. The motion judge dismissed Mr.
    Khorramshahis motion to compel Ms. Iranpour, his former spouse, to attend to
    have a religious divorce signed and schedule a contempt hearing on a priority
    basis. She ordered him to pay $2,200 in costs to Ms. Iranpour.

[2]

Under r. 61.04(1) of the
Rules
    of Civil Procedure
, R.R.O. 1990 Reg. 194, an appeal to an appellate court
    shall be commenced by serving a notice of appeal and the required certificate
    within 30 days after the order appealed from was made. This means that Mr.
    Khorramshahis deadline to serve a notice of appeal on Ms. Iranpour was
    January 7, 2022.

[3]

Mr. Khorramshahi served Ms.
    Iranpour by email with his notice of appeal and certificate of evidence at 7:57
    p.m. on January 7, 2022. In his notice of appeal, he mistakenly noted the date
    of the order under appeal as October 8, 2021. The court office rejected his
    filing without an order extending the time to file the notice of appeal. On
    February 25, 2022, at 4:23 p.m., Mr. Khorramshahi served Ms. Iranpour by
    email with his present motion to extend the time for filing.

[4]

Ms. Iranpour opposes the
    requested extension.

[5]

The overarching
    consideration on this motion is whether the justice of the case warrants the
    requested extension. Included in this consideration are the following
    well-established criteria: the length of and explanation for the delay; a
bona
    fide
intention to appeal formed within the 30-day appeal deadline under r. 61.04(1)
    of the
Rules of Civil Procedure
; any prejudice caused by the delay;
    and the merits of the proposed appeal: see
Enbridge Gas Distribution Inc.
    v. Froese
, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.

[6]

Mr. Khorramshahis affidavit
    in support of his motion is very brief. While he explained in his affidavit why
    his materials were rejected by the court office, he failed to provide any
    explanation for his delay in serving them past the January 7, 2022 deadline.
    Service by email after 4:00 p.m. is deemed under r. 16.01(4)(b)(iv) to be
    service on the next day; the next day in this case being a Saturday, service is
    deemed under r. 3.01(1)(d) to have taken place on Monday, January 10, 2022.
[1]
Similarly, there is no evidence that Mr. Khorramshahi formed an intention to
    appeal within the 30-day appeal period. I am not prepared to infer that Mr.
    Khorramshahi formed the requisite intention to appeal given that the notice of
    appeal and certificate of evidence were served out of time. There is also no
    explanation provided in Mr. Khorramshahis supporting affidavit for the delay
    in bringing this motion almost two months after his filing was rejected by the
    court office. While the delay in the commencement of the appeal is short, the
    delay in bringing this motion is not, especially in the context of family law
    litigation where finality is essential to allow families to move on with their
    lives.

[7]

The fact that Mr.
    Khorramshahi is self-represented on this motion does not excuse the delay or
    the absence of explanations for his delay. Mr. Khorramshahi was represented by
    counsel before the motion judge and he advised that he had assistance in
    preparing his appeal materials and on this motion.

[8]

I turn to the merits of the
    proposed appeal. Mr. Khorramshahi has only provided the reasons of the motion
    judge and his proposed notice of appeal. I do not have a copy of the motion
    judges formal order, nor do I have a copy of the appeal book or factum
    proposed to be filed, although Mr. Khorramshahi advised that they were
    prepared. The only reference to the merits of the appeal in Mr. Khorramshahis
    supporting affidavit is his statement that: Without this extension, the
    appellant would lose the opportunity to appeal a decision which has
    fundamentally ignored the evidences [sic] which was open with the Superior
    Court of Justice on Dec. 2021.

[9]

As indicated in his
    materials and submissions on this motion, his principal ground of appeal is
    that the motion judge erred in failing to accept the expert evidence proffered
    by his expert with respect to Iranian law. He also argues that the motion judge
    erred in preferring the expert evidence given by Ms. Iranpours expert that Ms.
    Iranpour could not release her Iranian dowry (Mahrieh) and that Iranian
    courts had jurisdiction over this matter.

[10]

Based on the materials
    provided, this ground has no prospect of success. It was open to the motion
    judge to prefer the evidence of Ms. Iranpours expert over the evidence of Mr.
    Khorramshahis expert. This evidence supported the motion judges determination
    that she had no jurisdiction to grant the order sought by Mr. Khorramshahi.
    Mr. Khorramshahi has not pointed to any arguable error apparent in her reasons
    or decision.

[11]

Finally, I consider whether
    there is any prejudice to Ms. Iranpour because of Mr. Khorramshahis delay. In
    my view, again in the context of family law litigation, it would be prejudicial
    to subject Ms. Iranpour to further costs in responding to an unmeritorious
    appeal: see
Bobel v. Humecka
, 2021 ONCA 757, at para. 6.

[12]

Mr. Khorramshahi has not met
    his onus on this motion. I am not persuaded that the justice of the case
    warrants an extension of time to appeal. Rather, the justice of the case warrants
    the refusal of the requested extension.

[13]

Accordingly, the motion is
    dismissed. Although self-represented on this motion, Ms. Iranpour consulted
    with her lawyer about Mr. Khorramshahis motion. She is therefore entitled to
    costs of this motion in the amount of $500 payable forthwith by Mr.
    Khorramshahi.

L.B. Roberts J.A.





[1]

This
    is because, r. 3.01(1)(d) specifies that service of a document made after 4
    p.m. or at any time on a holiday shall be deemed to have been made on the next
    day that is not a holiday. Under r. 1.03(1), holiday is defined as including
    any Saturday or Sunday.


