Court of Appeal for Ontario
Date: 20220203 Docket: C67674 & C67676
Docket: C67674
Before: Pepall, Brown and Thorburn JJ.A.
Between: Shahram Heidari Plaintiff (Respondent)
And: Bijan Naghshbandi Defendant (Appellant)
Docket: C67676
And Between: Bijan Naghshbandi Defendant / Plaintiff by counterclaim (Appellant)
And: Tarra Engineering Inc., Shahram Heidari, and Tarra Engineering and Structural Consultants Inc. Plaintiff / Defendants by counterclaim (Respondents)
Counsel: Antony Niksich, for the appellant Bijan Naghshbandi Sean Zeitz and James Quigley, for the respondents Shahram Heidari, Tarra Engineering Inc., and Tarra Engineering and Structural Consultants Inc.
Heard: February 1, 2022 by video conference
On appeal from the judgments of Justice Peter Bawden of the Superior Court of Justice, dated October 17, 2019 and May 8, 2020.
Reasons for Decision
[1] The appellant, Bijan Naghshbandi, appeals from judgments in two actions involving the collection of debts claimed by the respondents, Shahram Heidari and his company, Tarra Engineering Inc. (“TEI”).
[2] In the first action, Heidari v. Naghshbandi, the trial judge ordered the appellant to pay Mr. Heidari $173,544 plus interest and costs. In the second action, Tarra Engineering Inc. v. Naghshbandi, the trial judge ordered the appellant to pay TEI $105,810 plus interests and costs and dismissed the appellant’s counterclaim against Mr. Heidari, TEI, and Tarra Engineering and Structural Consultants Inc., another company established by Mr. Heidari.
[3] In essence, the appellant advances five grounds of appeal against the judgments.
[4] First, he submits that the trial judge decided the actions against him on a new theory of liability. The appellant maintains that the trial judge introduced a joint investment claim that was not pleaded and was not the subject of evidence or submissions at trial.
[5] We do not agree with this submission.
[6] Mr. Heidari and TEI claimed repayment of money lent to the appellant. The appellant denied that any loans were advanced to him.
[7] The trial judge found that Mr. Naghshbandi arrived in Canada with few or no resources and relied on loans or capital invested by others to support himself. The trial judge did not accept the appellant’s evidence that loans had not been made by Mr. Heidari and accepted Mr. Heidari’s evidence to the contrary. He properly characterized credibility as the central issue at trial. Indeed, the parties agreed that the litigation turned on credibility. Although the trial judge had reservations regarding certain aspects of Mr. Heidari’s testimony [^1], he found him to be a generally honest man. In contrast, he found the appellant to be particularly mendacious. As the trial judge stated at para. 203:
Mr. Naghshbandi's credibility was pitted against that of every other witness in this trial. His testimony amounted to a series of denials and allegations which were not corroborated by any other witness. He was not a credible witness…
[8] While some of the funds had been advanced to the appellant for the purposes of a joint investment, they were nonetheless loans by Mr. Heidari that were to be repaid by the appellant. The basis for the trial judge’s determination was not a new theory of liability. We see no error in the trial judge’s treatment of this issue.
[9] Second, the appellant submits that the trial judge failed to provide adequate reasons for the appellant’s liability for the debts arising from the joint investments.
[10] The trial judge gave reasons for decision that were 52 pages in length that were then supplemented by additional reasons following receipt of further submissions. He explained that the funds were advanced so that the appellant could invest in real estate and there were cheques and emails that supported his finding. He had to determine in part whether the payments were made to the appellant for his sole benefit, for Mr. Heidari’s sole benefit, or for their joint benefit. He explained why he decided that half was for the appellant and half for Mr. Heidari. His reasons, though not perfect, justified and explained the result and allowed for appellate review. We would not give effect to this ground of appeal.
[11] Third, the appellant argues that the trial judge failed to apply a credit of $149,027 against the damages awarded to Mr. Heidari.
[12] There is no basis for this complaint. Mr. Heidari stated in his Reply to a Demand for Particulars that the credit had already been deducted from the amount he was claiming. Although the appellant amended his Statement of Defence and Counterclaim following receipt of the Reply to the Demand for Particulars, he never raised this issue. Understandably therefore, the trial judge did not apply any further credit.
[13] Fourth, the appellant asserts that the trial judge misstated the test for an oppression action.
[14] We disagree. He commenced by addressing whether the appellant had status to claim oppression. The appellant had argued that his entitlement to relief from oppression was based on being a shareholder of TEI when Tarra Engineering and Structural Consultants Inc. was incorporated in 2006 to carry on TEI’s business activities but the trial judge rejected that contention. Having done so, it was unnecessary to conduct any further analysis into entitlement to an oppression remedy and the applicable test.
[15] Fifth, the appellant submits that the trial judge erred in relying on the testimony of Mr. Zanganeh, TEI’s bookkeeper, to prove that the appellant had signed away his single share in 2006. The trial judge had found Mr. Zanganeh to be unreliable and biased against the appellant.
[16] The trial judge rejected the appellant’s contention that he had not relinquished his share in 2006 in part because he believed Mr. Heidari and disbelieved the appellant. His disbelief was based on an extensive examination of the appellant’s lack of credibility and also the evidence of Brian Lindblom, an expert document examiner who positively identified the appellant’s signature on the share transfer document. In addition, in 2009, when writing to the Canada Revenue Agency, the appellant stated that he remembered signing documents for the purpose of a TEI share transfer to Mr. Heidari in 2006. Moreover, as the trial judge found, there was no evidence that the appellant ever requested any shareholder meetings after October 2006. Even though the trial judge considered Mr. Zanganeh to be unreliable, it was open to the trial judge to accept his evidence that he was present when the appellant signed the share transfer in the face of the strong corroboration offered by all of the other evidence.
[17] For these reasons, the appeals are dismissed with total costs of $40,000 inclusive of disbursements and applicable tax to be paid by the appellant to the respondents ($20,000 for each action).
“S.E. Pepall J.A.”
“David Brown J.A.”
“J.A. Thorburn J.A.”