Court File and Parties

CITATION: Fatahi-Ghandehari v. Wilson, 2018 ONSC 5988 DIVISIONAL COURT FILE NO.: 272/18 DATE: 20181010

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: SARA FATAHI-GHANDEHARI, Applicant/Respondent on this Motion AND: STEWART WILSON, Respondent AND: STRAIGHT FORWARD AUTO SERVICE INC. and JASON BRADIMORE, Moving Non-Parties

BEFORE: MARROCCO A.C.J.S.C.

COUNSEL: Richard K Watson, for the Moving Non-Parties Amar Mohammed, for the Respondent on this Motion

HEARD at TORONTO: SEPTEMBER 19, 2018

MOTION TO STRIKE ENDORSEMENT

[1] Sara Fatahi-Ghandehari and Stewart Wilson were married for seven years before separating in 2014. Since then, they have been involved in contentious family law proceedings.

[2] Sara Fatahi-Ghandehari during the family law proceedings sought financial disclosure from Mr. Wilson so that she could establish her entitlement to an equalization payment. During those proceedings a preservation order was issued on November 3, 2016. The preservation order required the respondent, Stewart Wilson, and the Moving Non-Parties to deliver up several valuable cars to a bailiff for preservation until the family law proceedings ended or until the Court ordered otherwise.

[3] One of the cars affected by the preservation order is a Ferrari. The Moving Non-Parties learned that the bailiff storing the Ferrari was threatening to sell it and brought a motion seeking release of the Ferrari from impound. On April 16, 2018 their motion was dismissed. The Moving Non-Parties then moved for leave to appeal the interlocutory order dismissing their motion.

[4] I refer to Mr. Wilson as the respondent because that is generally the way he has been referred to in the family law proceedings. Mr. Wilson did not appear on the motion before me.

[5] Sara Fatahi-Ghandehari was the applicant in the proceedings leading to the preservation order; she is responding to the Moving Non-Parties motion for leave to appeal the order refusing to lift the Ferrari from impound as well as this motion to strike portions of her Factum and Casebook.

[6] The Moving Non-Parties perfected their motion for leave to appeal by serving and filing a Notice of Motion for leave to appeal, a Motion Record, a Book of Authorities and a Factum.

[7] Ms. Fatahi-Ghandehari served and filed a Factum, a Supplementary Factum and a Casebook.

[8] The Moving Non-Parties on this motion seek an order striking out portions of Ms. Fatahi-Ghandehari’s Factum because they claim that those portions rely on facts for which there is no evidence or findings from other proceedings to which the Moving Non-Parties were not a party. The Moving Non-Parties also seek to strike out two cases be cited in Ms. Fatahi-Ghandehari’s Casebook because they claim those cases are included as evidence rather than judicial authority.

[9] This is perhaps an appropriate place to observe that the Moving Non-Parties were aware of the proceedings leading to the preservation order because Mr. Bradimore was examined in that proceeding and the Motion Judge refers to him in the decision granting the preservation order as a business associate in the respondent Wilson’s exotic car rental business. See Fatahi-Ghandehari v Wilson 2016 ONSC 6863 at para. 2.

[10] Ms. Fatahi-Ghandehari also moved to cite Mr. Wilson for contempt and similarly the Moving Non-Parties were aware of that motion because they were examined as nonparties to that proceeding.

[11] The contempt and preservation proceedings were heard by the same judge and a review of his Honour’s two sets of reasons indicates that Ms. Fatahi-Ghandehari has consistently maintained that Mr. Wilson is trying to hide assets by placing them in the name of the Moving Non-Parties.

[12] This motion is dismissed. Costs of this motion are fixed at $2000 to be awarded by the Panel deciding the motion for leave to appeal.

[13] Granting this motion unnecessarily delays hearing this request for leave to appeal. If the motion is granted, Ms. Fatahi-Ghandehari would have to refile an amended factum and there is no guarantee that there would not be similar objections.

[14] A party (or moving non-party) can submit in written material to a Panel reading a motion for leave to appeal that portions of a factum allege facts for which there is no evidence, rely on findings from proceedings to which the moving non-party was not a party and include judicial decisions as evidence rather than authority for legal propositions.

[15] Accordingly, the Moving Non-Parties in this matter may, if they wish, file one Reply Factum not exceeding five pages containing their objections to the material filed by Ms. Fatahi-Ghandehari. This Reply Factum will set out the facts referred to by the Sara Fatahi-Ghandehari for which there is allegedly no evidence, the contentious findings from other proceedings to which they were not a party and the two cases referred to by Ms. Fatahi-Ghandehari which they claim the Court should ignore. The Moving Non-Parties will, if they choose to do so, serve and file a Reply Factum, within 10 days of the date of this Decision.

[16] According to Ms. Fatahi-Ghandehari’s Factum, the Motion for Leave to Appeal is scheduled to be heard November 2, 2018. If that is correct, the Motion for Leave will continue to be scheduled to proceed on that date even if a Reply Factum is filed.

[17] Although not necessary for this decision, I would point out that the test for leave to appeal an interlocutory order is set out in Rule 62.02 (04) of the Rules of Civil Procedure. Leave to appeal will not be granted unless there is a conflicting decision on the matter involved in the proposed appeal and it is in the opinion of the Panel hearing the motion desirable that leave should be granted or there appears to the Panel hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that leave to appeal should be granted.

[18] An appeal from an interlocutory order is an appeal from the result not the reasons. If the result appears to be correct, even if there is an error in the reasons or the reasons are inadequate leave will be denied. See Tarion Warranty Corp. v Brookgreene Estates Inc. (2006), 148 A.C.W.S. (3d) 42, [2006] O.J. No. 1923 (S.C.J.) at para. 3.

[19] Written cost submissions concerning the motion for leave to appeal must be provided two days in advance of the date of the hearing of the motion for leave to appeal unless this would reveal offers to settle. If a party does not wish to provide written cost submissions because it will reveal an offer to settle, the party should communicate that to the Court so that the party’s silence on costs will not result in a denial of costs.

[20] Arguing the merits of the appeal on the application for leave is discouraged and will not be compensated for in costs. See 2265535 Ontario Inc. v Vijayant Sood, 2017 ONSC 4738.

[21] This Court has previously stated that $5000 all-inclusive is a reasonable amount to expect on a motion for leave to appeal in the absence of exceptional circumstances. See 2265535 Ontario Inc. v Vijayant Sood, 2017 ONSC 4738.

Conclusion

[22] This motion is dismissed. Costs are fixed at $2000 inclusive of disbursements and HST to be awarded by the Panel deciding the motion for leave. The Moving Non-Parties may file a Reply Factum as described elsewhere in these reasons.

MARROCCO A.C.J.S.C.

Date: 20181010