



COURT OF APPEAL FOR ONTARIO

CITATION: 2650971 Ontario Inc. v. Shameti,
    2021 ONCA 433

DATE: 20210616

DOCKET: M52539

Brown
    J.A. (Motions Judge)

BETWEEN

2650971 Ontario Inc. and

Kouraj Rahimi-Aloughareh a.k.a. Cyrus Rahimi

Applicants

(Responding
    Parties)

and

Durim Shameti
    and Anila Shameti

Respondents

(Moving
    Parties)

Harneet Singh and Obaidul Hoque, for
    the moving parties

Michael A. Katzman, for the responding
    parties

Heard: June 15, 2021 by video conference

ENDORSEMENT

[1]

The applicants, Durim Shameti and Anila Shameti,
    seek an extension of time to file a notice of appeal from the order of Steele
    J. dated April 5, 2021. On May 11, 2021  six days after the rules
    required the delivery of a notice of appeal  counsel for the moving parties
    informed counsel for the respondents, 2650971 Ontario Inc. and Mr. Kouraj
    Rahimi-Aloughareh a.k.a. Cyrus Rahimi, that his clients intended to appeal and
    sought their consent to a late filing of the notice of appeal. The respondents
    refused, thus prompting this motion for an extension.

[2]

The overarching principle is that an extension
    should be granted if the justice of the case requires. Four factors usually are
    considered as part of that determination.

[3]

The moving parties took certain steps during the
    30-day period to determine whether they should appeal the order, including
    consulting counsel, obtaining an appraisal of the property in dispute, and
    trying to engage the respondents in a discussion of the appraisal. While the
    moving parties did not instruct their counsel to initiate an appeal until May
    11, I am satisfied that their conduct, when assessed as a whole, indicates that
    they were strongly contemplating an appeal within the 30-day period. In the
    circumstances, that satisfies the requirement that they formed an intention to
    appeal within the relevant period.

[4]

As well, those steps were reasonable in the
    circumstances and provide an adequate explanation for their delay which was
    quite short.

[5]

As to the merits of the appeal, I cannot
    conclude that the appeal has so little merit that the court could reasonably
    deny the important right of an appeal:
Issasi v. Rosenzweig
, 2011
    ONCA 112, 277 O.A.C. 391, at para. 10;
Duca Community Credit Union Limited.
    V. Giovannoli
(2001), 142 O.A.C. 146 (C.A.), at para. 15. While the record
    strongly suggests that the responding parties will obtain some form of remedy
    given the significant contribution to the down payment made by Mr. Rahimi, the
    moving parties notice of appeal raises arguable issues about the effect of
    agreements amongst the parties on the matter of who held beneficial interests
    in the property  2650971 Ontario Inc. or Mr. Rahimi.

[6]

Further, I see no prejudice to the respondents
    in granting an extension of time. The trial judge ordered that the property be
    sold pursuant to the
Partition Act
,
    R.S.O. 1990, c. P.4,
and r. 66 of the
Rules of Civil Procedure
and she directed a reference to a Master to determine the terms and procedure
    for the sale, supervise the sale, and settle the accounts between the parties.
    That order is not subject to the automatic stay in r. 63.01(1). As well, the
    moving parties are prepared to perfect their appeal by July 15, 2021.

[7]

Considering these factors in light of the
    overarching principle of the justice of the case, I conclude that the moving
    parties are entitled to an extension of time in which to file a notice of
    appeal, on strict terms. Accordingly, I make the following orders:

(i)

the moving parties are granted leave to file
    their notice of appeal no later than Monday, June 21, 2021. If they fail to do
    so, the Registrar shall not accept any notice of appeal the moving parties
    attempt to file;

(ii)

the moving parties shall perfect their appeal no
    later than July 15, 2021. If they fail to do so, the Registrar shall dismiss their
    appeal; and

(iii)

if the appeal is perfected within the stipulated
    time, the hearing of the appeal shall be expedited, with the date of the
    hearing being the first date available to the respondents. The hearing date,
    once set, shall be peremptory to the moving parties.

[8]

The moving parties do not seek costs of this
    motion. However, the responding parties seek costs of $5,071.44. While cost
    awards to unsuccessful parties on a motion are not common, the special
    circumstances of this motion merit such an award. The moving parties motion
    materials were woefully deficient, lacking copies of the reasons of the motion
    judge and the draft notice of appeal. The respondents filed a responding motion
    record that plugged these gaps in the evidentiary record and was of great
    assistance to the court. As a result, the respondents are entitled to their
    partial indemnity costs in the amount of $5,071.44.

[9]

I make the following orders regarding the
    payment of costs:

(i)

the moving parties shall pay the respondents
    their costs of $5,071.44 no later than 5 p.m. on Tuesday, June 22, 2021;

(ii)

the moving parties shall serve and file with
    this court proof of such payment no later than 12 noon on Wednesday, June 23,
    2021. If the moving parties fail to do so, the Registrar shall dismiss their
    appeal forthwith.

David Brown J.A.


