Canada Judgment

Court of Appeal for Ontario

Biswas v. Khan

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The Court of Appeal lacked jurisdiction because the order before it was interlocutory (Henderson J.'s dismissal of the motion) and appeals from interlocutory Superior Court orders lie to the Divisional Court with leave; the appellant had no timely appeal from Donohue J.'s summary judgment and did not move to extend time, therefore only Henderson J.'s interlocutory order was properly before the court and the appeal was quashed with costs awarded to the respondents.

Court disposition

Appeal quashed for lack of jurisdiction; costs awarded to respondents.

Orders

  • Appeal quashed.
  • Respondents awarded costs in the agreed amount of $4,000 inclusive.
  • Adjournment request denied.

02

Material facts

Parties

Sontush Biswas

Plaintiff (respondent) Counsel: Jason Huang Kung and Fawad Ghulami

Kalayani Biswas

Plaintiff (respondent) Counsel: Jason Huang Kung and Fawad Ghulami

Asif Khan

Defendant (appellant) Counsel: Khalid Parvaiz

Swapna Chakraborty

Defendant (appellant) Counsel: Khalid Parvaiz

RE/MAX Real Estate Centre Inc.

Defendant (appellant) Counsel: Khalid Parvaiz

Amounts and remedies

  • Costs Awarded: CAD 4,000

03

Procedural history

  1. Posture

    Civil Appeal / Court of Appeal Decision on Jurisdiction and Costs

04

Questions and positions

Legal issues

Party arguments

Applicant
The appellant asserted this court had jurisdiction because he was effectively appealing both Donohue J.'s summary judgment order and Henderson J.'s dismissal of the motion; counsel sought an adjournment due to late retention.
Respondent
The respondents submitted the appeal of Donohue J.'s order was out of time and no motion to extend time was brought; only Henderson J.'s interlocutory order was before the Court of Appeal, and appeals from such interlocutory orders lie to the Divisional Court with leave; respondents opposed adjournment and sought costs.

05

Court’s reasoning

  1. 01

    Antique Treasures of the World Inc. v. Bauer, 2003 CanLII 35349 (Ont. C.A.)

    An appeal from an interlocutory order of the Superior Court of Justice lies to the Divisional Court with leave, not to the Court of Appeal.

  2. 02

    Ontario appellate procedures and case law guidance (as applied in reasons)

    Appellate courts require timely notice of appeal; where an appeal is out of time, a party must move to extend time in accordance with procedural rules.

  3. 03

    Principles of case management and costs awards as applied by the Court of Appeal

    Courts will decline adjournment applications where retention of new counsel occurs late and prejudice to the respondent is apparent; successful respondent entitled to costs.

06

Ratio, limits and disposition

Ratio decidendi

The Court of Appeal lacked jurisdiction because the order before it was interlocutory (Henderson J.'s dismissal of the motion) and appeals from interlocutory Superior Court orders lie to the Divisional Court with leave; the appellant had no timely appeal from Donohue J.'s summary judgment and did not move to extend time, therefore only Henderson J.'s interlocutory order was properly before the court and the appeal was quashed with costs awarded to the respondents.

Obiter and limits

  • The court declined to adjourn the hearing because the appellant chose to retain counsel after the appeal was perfected and the respondents were entitled to have the matter heard as scheduled.
  • The court noted the registry's letter advising the appellant that the order may be interlocutory and that an extension of time to appeal Donohue J.'s order was an available option.

Court disposition

Appeal quashed for lack of jurisdiction; costs awarded to respondents.

  • Appeal quashed.
  • Respondents awarded costs in the agreed amount of $4,000 inclusive.
  • Adjournment request denied.

Source and reliance status

Court of Appeal for Ontario · 28 October 2025

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Judgment reading view

Judgment text

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Source document

Court of Appeal for Ontario

Judgment· 28 October 2025

2025 ONCA 745

Biswas v. Khan Collection Decisions of the Court of Appeal Date 2025-10-28 Neutral citation 2025 ONCA 745 Docket numbers COA-24-CV-1103 Judges Huscroft, Grant; Coroza, Steve A.; Monahan, Patrick J. Subject Civil Decision Content

COURT OF APPEAL FOR ONTARIO CITATION: Biswas v. Khan, 2025 ONCA 745 DATE: 20251028 DOCKET: COA-24-CV-1103 Huscroft, Coroza and Monahan JJ.A.

BETWEEN Sontush Biswas and Kalayani Biswas Plaintiffs (Respondents) and Asif Khan*, Swapna Chakraborty, RE/MAX Real Estate Centre Inc. Defendants (Appellant*) Khalid Parvaiz, for the appellant Jason Huang Kung and Fawad Ghulami, for the respondents Heard: October 24, 2025 On appeal from the order of Justice Joseph R. Henderson of the Superior Court of Justice, dated October 3, 2024.

REASONS FOR DECISION [1] The appellant’s counsel requested an adjournment of the appeal on the basis that he had been retained only one week prior to the hearing. We denied the request. The appellant chose to retain counsel after the appeal was perfected. The respondents are entitled to have the matter heard as scheduled. [2] Following the hearing, we quashed the appeal with reasons to follow. These are our reasons. [3] After Donohue J. granted the respondents summary judgment, the appellant brought a motion to another Superior Court judge, Henderson J., seeking to have the summary judgement order set aside. Henderson J. made an order dismissing the motion because the court did not have jurisdiction to make the order requested. [4] The appellant now seeks to appeal the order of Henderson J. to this court. The parties were sent a letter by the court’s legal counsel advising them that the order may be interlocutory rather than final, and that if so, the appeal lies to the Divisional Court. [5] The appellant argues that this court has jurisdiction because he is appealing the order of Donohue J. as well as the order of Henderson J. We do not agree. The appellant is well out of time to appeal from the order of Donohue J. and did not bring a motion seeking to extend time to do so, despite being advised by the court’s legal counsel that this was an option. It is clear from the record

that only the order of Henderson J. is before this court. [6] That being so, this court has no jurisdiction. The order of Henderson J. is interlocutory rather than final and an appeal from that order lies to the Divisional Court with leave: Antique Treasures of the World Inc. v. Bauer, 2003 CanLII 35349 (Ont. C.A.). [7] Accordingly, the appeal is quashed. [8] The respondents are entitled to costs in the agreed amount of $4,000, all inclusive. “Grant Huscroft J.A.” “S. Coroza J.A.” “P.J. Monahan J.A.”

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Antique Treasures of the World Inc. v. Bauer, 2003 CanLII 35349 (Ont. C.A.)

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