Nosohian v. Nezami-Nia, 2012 ONSC 3007
CITATION: Nosohian v. Nezami-Nia, 2012 ONSC 3007
DIVISIONAL COURT FILE NO.: 40/12
DATE: 20120522
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
NAHIDEH NOSOHIAN and MOHAMMAD HADI DEZYANIAN
Plaintiffs
(Respondents)
– and –
REZA NEZAMI-NIA
Defendant
(Appellant)
Counsel:
Harvey J. Ash, for the Respondents
R. Klotz, for the Appellant
HEARD at Toronto: May 22, 2012
ASTON J. (ORALLY)
[1] The standard of review on this appeal is governed by Housen v. Nikolaisen. Where an issue is one in which fact and legal principle are inextricably linked and predominantly a question of fact, significant deference is to be afforded the discretion of the Master (See Duchesne v. St-Denis, 2011 ONSC 2282 (C.A.)).
[2] In this case Master Haberman made findings that the defendant had not fully complied with all undertakings, that the responses of the defendant to fulfillment of specific undertakings was “lax and seriously deficient” and that the defendant had “failed to provide evidence of real effort made or of any exceptional or unforeseen circumstances”. She referred to the specific terms of the prior orders of May 18, 2011 and September 16, 2011 which warned the defendant of the peril that he faced if he did not do what those orders required of him. These findings were not only open to the Master on the evidence before her, they are sufficient to support the discretion which he exercised in striking the Statement of Defence.
[3] There is no error of law or legal principle. Though the reasons do not disclose that the Master considered any less drastic order, I am not persuaded that this constitutes an error in the circumstances of this case given the clear language in her reasons of September 16, 2011, the length of time the defendant had to either fulfill his undertakings in full, or to bring his own motion asking for dispensation in compliance, or at the very least, to provide the “fully detailed” sworn evidence previously specified. The endorsement of September 16, 2011 emphasized that it was the defendant’s last chance. He could not be surprised when the Master took that seriously.
[4] The appeal is therefore dismissed.
COSTS
[5] I have endorsed the Records, “For oral reasons given and recorded, the appeal is dismissed. The defendant to pay costs fixed at $5,000 plus HST plus disbursements of $486.69.”
ASTON J.
Date of Reasons for Judgment: May 22, 2012
Date of Release: May 31, 2012
CITATION: Nosohian v. Nezami-Nia, 2012 ONSC 3007
DIVISIONAL COURT FILE NO.: 40/12
DATE: 20120522
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON J.
BETWEEN:
NAHIDEH NOSOHIAN and MOHAMMAD HADI DEZYANIAN
Plaintiffs
(Respondents)
– and –
REZA NEZAMI-NIA
Defendant
(Appellant)
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: May 22, 2012
Date of Release: May 31, 2012