Usman v Usman, 2020 MBCA 54

Citation: Usman v Usman, 2020 MBCA 54 Date: 20200521 Docket: AF19-30-09374 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner BETWEEN : ) M. Usman sara usman ) on his own behalf ) (via videoconference) ) ( Petitioner ) Respondent ) S.

Usman ) on her own behalf - and - ) (via videoconference) ) Muhammad usman ) Appeal heard and ) Decision pronounced: ) May 8, 2020 ( Respondent ) Appellant ) ) Written reasons: ) May 21, 2020 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the Manitoba, Court of Appeal Rules , Man Reg 555/88R , all appeals are heard remotely by videoconferencing until further notice. beard JA (for the Court) : Issues [ 1 ] Mr. Usman appeals two orders made by a chambers judge in this Court.

In the first order, she dismissed his motion for a stay pending appeal of an order made by a motion judge in the Court of Queen’s Bench directing the sale of a residential rental property. In the second order, she dismissed his motion to extend the time to file an appeal book and factum. [ 2 ] We dismissed the appeal at the hearing with brief reasons to follow. These are those reasons. Background [ 3 ] The underlying matter relates to the division of property acquired by the parties, who are now divorced, during their marriage. One of the properties at issue was a residential rental property at 875 St.

Mary’s Road in Winnipeg, Manitoba. As part of a consent final order granted by Everett J on May 23, 2018 (the Everett order), the parties agreed that Mr. Usman would have the option of purchasing Ms Usman’s interest in this property for $50,000. He had until June 30, 2018, to arrange the financing to have her name removed from the mortgage registered against the property. If the financing was not in place by that date, the property would be listed for sale and Ms Usman’s interest would be paid from the proceeds of sale.

The Everett order has not been appealed. [ 4 ] As part of the Everett order, Ms Usman agreed to move out of the marital home (which was a different property), to give possession of it to Mr. Usman and to sign a homestead release releasing her interest in that property. She has completed those matters. [ 5 ] While Mr. Usman paid Ms Usman the $50,000 for her interest in 875 St. Mary’s Road in August 2018, he neither had her name removed from the mortgage nor listed the property for sale.

Because of her continuing liability for this mortgage, she was required to pay a higher down payment to obtain her own mortgage to purchase a home for herself and their children and her credit rating

remains at risk. [6] On January 30, 2019, Dueck J found Mr. Usman in contempt of court for not complying with the Everett order, andhe gave Mr. Usman an extension to April 16, 2019, to comply. When the matter came back before Dueck J on April 16, 2019, Mr.Usman had still not complied with the order, so Dueck J ordered that the property be sold and he set terms for the sale (the Dueck orderfor sale). In particular, he gave Ms Usman carriage of the sale and he ordered that Mr. Usman’s signature would not be required toaccept an offer. He did not, however, dispense with Mr.

Usman’s signature on the transfer documents required to complete a sale. [7] Ms Usman found a purchaser for the property and a sale agreement was completed on May 9, 2019. The originalpossession date of June 30, 2019, has been extended a number of times, and it appears that the purchaser is still prepared to complete thesale. [8] Mr. Usman has refused to cooperate to complete the sale and has filed a notice of appeal of the Dueck order for sale. He did not perfect the appeal by filing his appeal book and factum within the required time.

A different chambers judge granted him anextension to October 30, 2019 to file the documents, but made it clear to Mr. Usman that no further extension would be granted. [9] Mr. Usman missed that filing date, so he applied for a further extension. Simonsen JA refused to grant a furtherextension, which is one of the orders now under appeal before this Court. [10] Mr. Usman applied to Dueck J for a stay of the Dueck order for sale pending his appeal. Dueck J refused to grant astay (which has not been appealed), so Mr. Usman applied to this Court for a stay.

Simonsen JA dismissed that motion, which is theother order now under appeal before this Court. Standard of Review [11] Decisions regarding an extension of time to perfect an appeal and a stay of an order pending appeal are discretionarydecisions and, as such, are reviewed on the standard of deference.

According to this standard, the decision should not be set aside unlessthe chambers judge made an error of law or principle or misconceived the facts, or the decision was so clearly wrong as to amount to aninjustice. (See (regarding an extension of time) Brandt v Brandt, 2000 MBCA 46 at para 4; Lenko v Government of Manitoba et al, 2016MBCA 84 at para 6; and Delichte v Rogers, 2019 MBCA 69 at paras 6-7; and (regarding a stay order) Lenko v The Government ofManitoba et al, 2018 MBCA 129 at para 10.) Analysis [12] Mr. Usman has not pointed to any errors of law, legal principle or fact by the chambers judge.

The chambers judgeapplied the correct legal tests, both as regards the granting of a stay pending appeal (see RJR-MacDonald Inc v Canada (AttorneyGeneral), (SCC), [1994] 1 SCR 311; Granite Mortgage Corporation v Jurcevic, 2011 MBCA 59; and Kuny v Collegeof Registered Nurses of Manitoba, 2016 MBCA 122 at paras 11-12) and an extension of time to perfect an appeal (see Hunter v Hunter,2000 MBCA 134 (In Chambers) at paras 6-7; Bohemier v Bohemier, 2001 MBCA 161 at para 2; Boryskiewich v Stuart, 2014 MBCA 77(In Chambers) at paras 6-9; Singh v Pierpont, 2015 MBCA 18 (In Chambers) at paras 37, 40-41; and Winnipeg CondominiumCorporation 479 v 520 Portage Avenue Ltd et al, 2019 MBCA 83). [13] The requirement to demonstrate that there is an arguable case is a criterion that is common to both tests.

Mr. Usman’sargument is that, based on the facts in this case, the chambers judge came to the wrong decision and that he has an arguable case on hisappeal. [14] The chambers judge summarised three grounds of appeal in relation to the stay motion and found that none of themwere supported on the evidence. [15] One of those grounds relates to Mr. Usman’s payment of the sum of $50,000 to Ms Usman.

He contended beforeDueck J and also before the chambers judge that that money was paid to Ms Usman on the condition that she would grant him anextension of the time to arrange financing, and that she arranged the sale of the property prior to the expiration of that time period and inbreach of that condition; thus, the sale should not be enforced. That extension of time, even if it was granted, would have expired onDecember 15, 2019, and he still has not complied with the Everett order.

In fact, he asked at the hearing before this Court for a furtherextension of time to comply with the order. [16] Dueck J found that there was no such extension either imposed or accepted. That was a factual finding made by themotion judge after hearing viva voce evidence, including from the lawyer involved in the payment to Ms Usman who denied such acondition. The chambers judge found that Mr. Usman “has not put forward any basis upon which it could be concluded that JusticeDueck erred in coming to these conclusions.” Mr.

Usman has not pointed to any factual error in the decision of either the motion judgeor the chambers judge. Rather, he is re-arguing the same points and asking this Court to come to a different decision. That is not therole of an appellate court. [17] Mr. Usman also argues that the sale price of $303,000 is unfair to him because it is less than the fair market value of theproperty. Again, Mr. Usman has provided no evidence to support a higher price. The chambers judge found that the offer was for areasonable price, which was a factual finding, and Mr.

Usman has not demonstrated that she erred in so finding. [18] The chambers judge also addressed the issues that Mr. Usman raised related to his ownership of the property at issueand unfairness in the trial process. Again, Mr. Usman’s position in these issues amounts to a re-arguing of the facts to come to adifferent decision. The chambers judge considered these arguments and rejected them. Her decision is supported by the facts; thus,there is no error. [19] After she found that Mr.

Usman had raised no arguable ground of appeal, the chambers judge went on to consider theremaining criteria in the test for obtaining a stay and found that none had been met. We are in agreement that she did not err in so

finding. [ 20 ] The chambers judge stated that her finding that Mr. Usman did not have arguable grounds of appeal applied, as well, to determine the motion to extend the time to perfect the appeal. She noted that her finding was based on a more complete record upon which to evaluate the proposed grounds of appeal than was available at the earlier hearing to extend time, and she concluded that the extension should not be granted. We are of the view that she did not err in so finding. [ 21 ] Finally, neither of the chambers judge’s decisions is so clearly wrong as to amount to an injustice. Mr.

Usman has had since May 23, 2018, to either arrange financing to release Ms Usman’s liability or arrange his own sale of the property, but he has not done so. The only injustice in this case would be that occasioned by delaying the final resolution of this matter any longer. Decision [ 22 ] For these reasons, we dismissed the appeal at the hearing. [ 23 ] Mr. Usman will pay costs to Ms Usman of $2,000, inclusive of disbursements, payable immediately. If these costs remain unpaid, they can be deducted from the proceeds of sale of the property and paid to her. [ 24 ] One final comment.

While a party appealing a chambers order is not required to file a transcript of the evidence (see the Manitoba, Court of Appeal Rules , Man Reg 555/88R , rr 46(2), 28), there is a requirement to include in the appeal book the judgment appealed from and the reasons for judgment appealed from, whether or not those reasons are included in the transcript of evidence (see rr 23(1)(e), 23(1)(h)). [ 25 ] Mr. Usman failed to provide a copy of Simonsen JA’s reasons for judgment in his appeal book.

As a result, the Court has incurred a cost of $85.68 (including GST) to obtain a transcript of those reasons so that the hearing of this matter would not be delayed. Mr. Usman is ordered to pay the sum of $85.68 to the Court by the close of business on May 29, 2020. If that payment is not made, the Registrar is directed to arrange a hearing before this panel for Mr. Usman to show cause why he should not be held in contempt. JA JA JA