Court of Appeal for Ontario
Between:
Hassan Rashid
Appellant
and
Ann Shaher, also known as A. Shaher also known as A.K. Shaher also known as A.K. Richardson also known as Ann Shaher Gee and Richard Gee
Respondents
Counsel:
James Jagtoo and Frances Jagtoo, for the appellant
Charles Baker, for the respondents
Heard: November 16, 2009
On appeal from the judgment of Justice Peter Lauwers of the Superior Court of Justice dated March 31, 2009.
ENDORSEMENT
1Hassan Rashid appeals from the order of Lauwers J. dated March 31, 2009, dismissing his motion to set aside the order of Loukidelis J. This last-mentioned order, made on consent, dismissed Rashid’s action.
2This action was originally commenced on June 13, 2003. Rashid sought $500,000 for the return of funds paid to the respondent, Ann Shaher, pursuant to a promise of marriage and for punitive damages arising from Shaher’s alleged fraudulent misrepresentation. Shaher had promised to marry Rashid. In fact, she was already married.
3The matter was settled before a statement of defence was delivered and on September 16, 2003, pursuant to minutes of settlement dated August 8, 2003, Loukidelis J. dismissed the action on consent.
4The minutes of settlement required Shaher to pay $90,000 to Rashid by way of two promissory notes. The first promissory note, for $30,000, was to be paid in full no later than January 31, 2004. The second note, for $60,000, was to be paid five years from January 31, 2004, and was to be secured by a collateral mortgage in the amount of $60,000, given by Shaher’s sister, Mona, to Rashid. Based on the agreement, Rashid withdrew his lawsuit against Shaher.
5The parties disagreed over whether Shaher fulfilled her obligations under the settlement agreement. Rashid took the view that Shaher had not complied with the agreement, and he served Shaher with a notice of motion dated May 15, 2008, whereby he moved under rule 59.06(2)(a) to set aside the consent dismissal. The motion was brought on the basis of facts arising or discovered after the order was made or fraud. The claimed “facts arising” after the order involved the failure of Shaher’s solicitor to carry out his alleged personal undertaking to fully implement the minutes. Rashid also alleges that the consent order was obtained by Shaher’s fraud in entering into the minutes of settlement. Rashid also sought an order enforcing the settlement agreement.
6The motion judge dismissed the motion on the basis that there were no new facts to justify setting aside the consent order and there was no genuine issue for trial with respect to fraud in the formation of the minutes of settlement.
7The motion judge found that Rashid’s real complaint was that Shaher had failed to perform her obligations under the minutes of settlement. The appropriate approach, therefore, was to bring an action to enforce the settlement. Furthermore, the motion judge held that Rashid had not adequately explained his delay of over four years in pursuing the matter.
8Before this court, Rashid’s primary submission is that the motion judge erred in his analysis of fraud by using the test for summary judgment and by ignoring certain evidence that supports a finding of fraud in the sense that Shaher entered into the settlement knowing that she had no intention of fulfilling her part of the bargain.
9During argument, counsel for Shaher advised that his client had commenced an action against Rashid in which Rashid had asserted a counterclaim. Counsel for Shaher agrees that all of the relief that Rashid seeks in respect of the alleged breach of the minutes of settlement can be asserted in that counterclaim. He further conceded that, if necessary, the counterclaim could be amended to ensure that all relevant issues are before the court. He also said that he did not anticipate a limitation defence.
10In these circumstances the appeal should be dismissed in order to let the matter proceed where it should, in the new action.
11The appeal is therefore dismissed. In the circumstances of this case we make no order as to the costs of this appeal.
“K. Feldman J.A.”
“Robert P. Armstrong J.A.”
“Gloria Epstein J.A.”
