Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220621 DOCKET: C69021

Brown, Roberts and Paciocco JJ.A.

BETWEEN

Sina Akhavan Plaintiff (Respondent)

and

Siavash Taheri Defendant (Appellant)

Counsel: Julian Heller, for the appellant Ronald Flom, for the respondent

Heard: June 17, 2022

On appeal from the judgment of Justice Eugenia Papageorgiou of the Superior Court of Justice, dated December 24, 2020.

Reasons for Decision

[1] The appellant, Siavash Taheri, appeals from the December 24, 2020 judgment that ordered him to pay the respondent, Sina Akhavan, the sum of $2,462,638.77, inclusive of pre-judgment interest, in respect of loans made to Taheri, which were evidenced by promissory notes.

[2] At the end of the hearing, we dismissed the appeal, with reasons to follow. These are those reasons.

[3] Two promissory notes lie at the heart of the parties’ dispute: a promissory note dated June 1, 2014 in the amount of $672,800, plus interest at the rate of 16 per cent per annum (the “June Note”), and one dated July 12, 2014 in the amount of $727,375, plus interest in the amount of 15 per cent per annum (the “July Note”). At trial, Akhavan took the position that the two notes evidenced two discrete loans; Taheri’s position was that the two notes evidenced one loan, with the July Note replacing the June Note. The trial judge found that the June Note and July Note evidenced two separate loans and rendered judgment accordingly.

[4] Taheri advances two grounds of appeal.

[5] Taheri’s first and primary ground of appeal is that the trial judge erred in principle in reaching her conclusion that there were two separate loans evidenced by two different promissory notes, instead of one loan of only approximately $380,000. Taheri contends the trial judge committed several errors: (i) failing to find there was an absence of consideration for the June Note; (ii) failing to draw an adverse inference from Akhavan’s refusal to produce bank records demonstrating consideration for the June Note; (iii) failing to give effect to the wording in the notes that stated: “Note: This promissory note will supercede (sic) any other promissory notes issued prior to this”; (iv) relying on transcripts of two recorded conversations between Akhavan’s father and Taheri; (v) making an adverse finding of credibility against Taheri when his lack of responsiveness to questions on cross-examination resulted in a truncated cross-examination; (vi) failing to draw an adverse inference from a prior inconsistent statement by Akhavan; (vi) relying on interest calculations that she did not share with counsel before releasing her reasons; and (vii) failing to use read-ins made by the plaintiff in a proper fashion.

[6] We are not persuaded by any of these submissions.

[7] As to Taheri’s complaint that the trial judge’s reasons include interest calculations that she did not share with counsel during the trial, thereby tainting her credibility findings, there is no merit to this submission. The trial judge’s calculations were simple arithmetic, and she fully explained how she performed her calculations.

[8] The balance of the appellant’s submissions impugn the trial judge’s credibility and other factual findings. The trial judge’s reasons were lengthy and comprehensive. The trial judge was fully alive to: the limits of the documentary record; the issue of the lack of production of certain bank records; the language of replacement on the face of the notes; the differences between Akhavan’s evidence on discovery and at trial; and, the implications of the difficulties encountered in cross-examining Taheri. The trial judge explained, at length and in a logical and coherent fashion, her reasons for: finding that Taheri’s position was not credible; the basis for her acceptance that Taheri made admissions about his indebtedness during the recorded conversations with Akhavan’s father; and her ultimate finding that, on a balance of probabilities, the two notes evidenced two separate loans.

[9] Taheri submits the trial judge erred by failing to use properly portions of his examination for discovery that were read in at trial by plaintiff’s counsel. In his answers that were read in, Taheri acknowledged that he made the handwritten insertions on the two notes and also stated that information about the amount of the loan inserted in the notes came from Akhavan, whom he trusted. By way of submission, Taheri contends, in effect, that since those answers were read in as part of the plaintiff’s case, the trial judge was obliged to accept Taheri’s version of events.

[10] We do not accept this submission for two reasons. First, the submission ignores the entirety of the passage from Taheri’s discovery read in at trial by plaintiff’s counsel. While it is true that the read-ins included Taheri’s explanation that the monetary amounts he wrote on the notes were provided by Akhavan’s father, the read-in concluded with an admission against interest by Taheri: “[Akhavan’s father] brought [the note] to me and he said this amount and I accept that ” (emphasis added).

[11] Second, and in any event, a party reading in evidence from the adverse party’s examination for discovery is not precluded from adducing other evidence that may rebut discovery evidence that the party reads in: John W. Morden & Paul M. Perell, The Law of Civil Procedure in Ontario, 4th ed. (LexisNexis: Toronto, 2020), at §9.86. The evidence that is read in becomes part of the totality of the evidence available for the trial judge to consider. Like any evidence, the trial judge may accept some, all or part of the particular witness’s evidence.

[12] While Taheri obviously does not agree with the findings made by the trial judge, he has not pointed to any basis for appellate interference with those findings: the trial judge’s reasons do not disclose a palpable and overriding error of fact, an error in principle in her credibility-finding process, any misapprehension of the evidence or an unreasonable interpretation of the language of the notes. Accordingly, we give no effect to Taheri’s first ground of appeal.

[13] As his second ground of appeal, Taheri submits that the poor quality of the trial transcript prevents proper appellate review and, on that basis alone, the judgment should be set aside.

[14] It appears that deficiencies in the audio recording of the trial proceedings resulted in a trial transcript of poor quality, although the transcript is not completely unusable. However, Taheri has not attempted to link any alleged errors in the trial judge’s findings of fact or credibility to areas of the transcript where the reporter could not decipher the audio recording. Nor has Taheri demonstrated that the indecipherable portions likely contain evidence that would call into question findings made by the trial judge. It was open to Taheri to attempt to file fresh evidence from his trial counsel to the effect that the transcript failed to capture material admissions elicited at trial from the plaintiff. Instead, Taheri submits, in effect, that since part of the transcript cannot be deciphered, there must be some evidence that could not be transcribed which is favourable to his appeal. With respect, that is simply an argument in the air, made without an adequate foundation. In the specific circumstances of this case, the particular deficiencies that do exist in the transcript have not prevented appellate review of the grounds of appeal advanced by Taheri, nor have they caused a substantial wrong or miscarriage of justice that would require a new trial.

[15] For these reasons, the appeal was dismissed.

[16] Based on the agreement of the parties, Akhavan is entitled to his costs of the appeal from Taheri fixed in the amount of $25,000, inclusive of disbursements and applicable taxes.

“David Brown J.A.”

“L.B. Roberts J.A.”

“David M. Paciocco J.A.”