Court File and Parties
COURT FILE NO.: CV-08-352658 DATE: 20200311 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: City of Toronto, Plaintiff AND: Marzieh Mohammadi-Kia, Defendant
BEFORE: Master P. T. Sugunasiri
COUNSEL: A. Tieu, Counsel for the City of Toronto/Moving Party M. Mohammadi-Kia in person T. Sobhi, son and Farsi interpreter for Mohamaddi-Kia
HEARD: March 9, 2020
Reasons for Decision
Overview
[1] Ms. Mohammadi-Kia is a mother of three grown children and for the most part, a homemaker. Her mother tongue is Farsi. She has no legal training. Her children have no legal training. In 1998 Ms. Mohammadi-Kia was convicted of social assistance fraud. She was sentenced to 9 months in jail and restitution of $54,060.74 at a rate of $300/month commencing 1 month after her release from jail and until restitution was complete.
[2] Now in 2020, she still owes approximately $43,000. It appears that she has minimal income from WSIB and CPP. The City has repeatedly deferred payment of the debt and indeed “closed” the file many years ago on the basis that Ms. Mohammadi-Kia had no assets and limited income. It did, however, continue to monitor the file. In 2017 the City found out that she and her son owned a property in Durham. Suddenly, obtaining a writ became useful and potentially fruitful. The City started to prepare a motion to issue a writ against Ms. Mohammadi-Kia. Since that time, the property has been sold. Nevertheless, the City still moves for permission to issue a writ in Durham. It requires permission because more than six years have passed since the original judgment.
[3] Ms. Mohammadi-Kia objects to the City’s position for five main reasons:
a. Her conviction was unjust, and her sentence was disproportionate to that of her ex-husband; b. She was poorly represented by legal aid counsel; c. She has limited means and cannot afford to repay the debt; d. She was under the belief that she did not have to repay the debt because she served jail time and because one of the officers at the City of Toronto told her so; and e. Although a co-owner, the house that was the initial target of the writ was for her son and not for her.
[4] For the reasons that follow, I allow the City to issue a writ. It has adequately explained the reason for its delay in collecting. While Ms. Mohammadi-Kia explains that she thought that the City was no longer pursuing the debt, she has not persuaded me, as she must, that she changed anything in her life or made financial choices as a result of that belief. On balance, it is fair and just to allow the City to pursue its writ.
Preliminary Issues
Ms. Mohammadi-Kia’s Representation
[5] Mr. Sobhi attended court with his mother to act as her agent. I have great sympathy for Mr. Sobhi’s attempt to assist his mother. However, on September 24, 2019 I made a ruling that as a non-lawyer, he could not act as her agent because it is contrary to Law Society Act. Ms. Mohammadi-Kia did not appeal that decision. I have allowed Mr. Sobhi to assist his mother by being an unofficial Farsi interpreter, a role normally fulfilled by an independent certified court interpreter.
[6] Mr. Sobhi complied with my order at the hearing. However, at the end, he sought leave to make a statement to the court as Ms. Mohammadi-Kia’s son. I declined to hear his unsworn statement. In the end, he made his statement. I do not factor his comments into my decision as it would be improper to do so.
Ms. Mohammadi-Kia’s Evidence
[7] Ms. Mohammadi-Kia presented affidavits from her and her children to support her opposition to the City’s motion. I accepted three affidavits for filing – hers, her daughter’s and Mr. Sobhi’s. Mr. Sobhi’s affidavit was an unsworn version of a sworn one served on the City. The City did not object to its admission.
[8] I did not accept the affidavit of Ms. Mohammadi-Kia’s other son who lives in New Zealand. It was unsworn with no ability for the City to test his statements. Ms. Mohammadi-Kia argued that her second son’s statement was important because it addresses ownership of the property identified by the City in 2017.
[9] I make two points. First, if his information is critical, even more reason that it should be in the form of a sworn affidavit that the City can test by way of cross-examination. The fact that he is out of the country does not matter. While the court makes every effort to assist and accommodate unrepresented parties, all parties are subject to the same rules of evidence and the same right to know the case they must meet. In this case, admitting the unsworn statement would deny the City its procedural fairness, a right afforded to both sides of this dispute.
[10] Second, the affidavit is no longer relevant. The property in question was sold and Ms. Mohammadi-Kia’s son received the funds. Any writ would only affect property owned by Ms. Mohammadi-Kia presently or in the future.
Ms. Mohammadi-Kia’s Lack of Understanding of the Court Process
[11] Throughout the hearing, Ms. Mohammadi-Kia highlighted her lack of understanding of the court process. At the end of the hearing, I informed the parties that I would think about my decision and release it outside of court. Mr. Sobhi, on behalf of his mother, expressed surprise that the hearing was over. They asked where their opportunity was to tender their own evidence and provide “rebuttal evidence”. It appears that Ms. Mohammadi-Kia’s understanding of the court process may come from her experience in the criminal court where there is a trial and evidence from witnesses. I explained to her and Mr. Sobhi that this is a motion in Civil Court which entails providing affidavit evidence. I have that evidence by way of the three affidavits that she filed. I also explained that she received her opportunity to make her arguments when it was her turn to speak.
[12] Unfortunately, many find themselves in our court with few financial resources and no legal assistance. I understand that Ms. Mohammadi-Kia might not know how to properly respond to the City’s motion and cannot afford a lawyer to assist her. While the court gives leeway to people who represent themselves in court, it cannot provide legal assistance or advice, nor should it deprive the represented party of its rights in order to accommodate the self-represented party.
[13] I add that in this day of internet access, self-represented parties have some obligation to make themselves aware of the court’s process. The rules of court are readily accessible on-line as is specific information about civil motions, court filings, court process and etiquette. At the last appearance I had also directed Ms. Mohammadi-Kia and Mr. Sobhi to Pro Bono Law who might have been able to assist. I understand that Ms. Mohammadi-Kia may have limited access to even these resources because of her language barrier. However, Mr. Sobhi appears fluent in English.
Law and Analysis
[14] The Rules of Civil Procedure (rules of court) is a law in Ontario that tells litigants how to obtain various remedies from the non-criminal side of the Superior Court of Justice (“Civil Court”). In 2004, Ms. Mohammadi-Kia’s criminal restitution order became a “Civil Judgment”. The Civil Judgment confirmed that Ms. Mohammadi-Kia owed $54,060.74 to the City of Toronto. Absent an appeal of the judge who ordered this payment, the criminal restitution order and the Civil Judgment are valid. However unjust the restitution order may appear to be to Ms. Mohammadi-Kia and her family, the City is allowed to take steps to collect.
[15] There are many ways to collect the debt. One way is to file a “writ” with the Sheriff of the region that Ms. Mohammadi-Kia lives in. The writ allows the sheriff of the region to take any property that Ms. Mohammadi-Kia owns in that region, up to the value of the debt. In this case, the City of Toronto wishes to file a writ in Durham region to capture any property that Ms. Mohammadi-Kia may own up to the value of approximately $43,000.
[16] Normally, someone who is owed a debt and has a civil judgment can file a writ within six years of the judgment without obtaining permission from the court. In this case, the City obtained its Civil Judgment in 2004. It would have had until 2010 to file a writ. It did not do so. It now needs the Court’s permission.
[17] Rule 60.07(2) of the Rules of Civil Procedure allows the City to seek that permission from the Civil Court. In deciding whether to grant the City permission, the court takes into consideration the City’s explanation for its delay. The City must also satisfy the court that it did not intend, by its delay, to relieve Ms. Mohammadi-Kia of her obligation to pay. If the City does not convince me of one or both points, I could reject its request to file a writ in Durham.
[18] I could also decide against the City if Ms. Mohammadi-Kia convinced me that City’s delay caused her to believe that she no longer had to pay the debt, and that because of her belief, she arranged her financial affairs differently. Our court has developed these legal principles through years of deciding similar cases. I rely on the cases of Adelaide Capital Corp. v 412259 Ontario Ltd., [2006] OJ No 4175 at paras. 10-13 (SCJ Master) and Ballentine v Ballentine, (1999), 45 OR 706 (SCJ) at para. 20. These cases are referred to in the Martel case found in the City’s Book of Authorities.
The City Has Explained Its Delay and Did Not Free Ms. Mohammadi-Kia from the Restitution Order/Debt
[19] The City has adequately explained its delay and has persuaded me that its delay in collecting does not free Ms. Mohammadi-Kia from the debt. Between 2001 and 2005 Ms. Mohammadi-Kia made $10,300 of payments. Her payments then stopped. The City notes show that it continued to monitor the account and concluded year after year that the debt was uncollectable. Between the end of 2012 and August 11, 2017, various City officers communicated with Ms. Mohammadi-Kia and her daughter from time to time. During that period, the City approved Ms. Mohammadi-Kia for debt deferral based on her financial circumstances and lack of assets. In late August of 2017 the City found out that Ms. Mohammadi-Kia owned a property in Durham with her son. That caused the City to pursue a writ. Ms. Mohammadi-Kia and her son sold the property on September 25, 2017.
[20] Based on this timeline, the City stopped collecting the debt from 2005 to 2017 because it realized that Ms. Mohammadi-Kia was unable to pay $300/month as ordered by the criminal court.
Ms. Mohammadi-Kia Had a Genuine Belief That She No Longer Had to Pay
[21] After carefully reviewing the affidavits filed by Ms. Mohammadi-Kia, I accept her evidence that she thought that she did not have to pay the City any more money. There is a dispute about where her belief comes from. Her evidence is that a City Officer told her that she no longer had to pay or that she did not have to pay because she served time in jail. The City denies that an officer said either of those things. The City’s notes do not show anyone telling Ms. Mohammadi-Kia that she no longer must pay. There are however some entries stating that the file is “closed”. I have no explanation from the City as to what these entries mean. Overall, I find that Ms. Mohammadi-Kia had a genuine belief that she no longer owed the money.
Ms. Mohammadi-Kia Did Not Change Her Financial Life or Decisions on Her Belief
[22] Having said that, there is nothing in Ms. Mohammadi-Kia’s affidavits to suggest that anything changed in her life as a result of her belief that she no longer had to pay the City. In other words, she did not rely on the absence of collection efforts by the City to her detriment – a principle that the law describes as “detrimental reliance”.
The Justness of the Conviction and Inadequate Legal Representation Are Not Relevant
[23] None of Ms. Mohammadi-Kia’s other arguments help her oppose the City’s writ request. The justness of her conviction and inadequate legal representation in the criminal proceeding is not relevant. I cannot overturn what happened at her criminal trial. Our law has a principle that the decision of another court is final unless it is reversed on appeal.
Ms. Mohammadi-Kia’s Inability to Pay the Debt Does Not Block the Writ
[24] Ms. Mohammadi-Kia’s limited means to pay the debt is not relevant to the question of whether the City can file a writ. The writ does not require Ms. Mohammadi-Kia to pay anything. The only purpose of the writ is to capture any property that Ms. Mohammadi-Kia might own in Durham. If she does not own any property in Durham, then the writ will not affect her at all.
Inability to Pay Does Not Relieve Ms. Mohammadi-Kia from the Debt
[25] Regardless of her ability to pay, the restitution order/Civil Judgment is a valid debt which the City is entitled to collect the debt. Only the City can decide to waive payment of it. If she cannot pay Ms. Mohammadi-Kia should continue to discuss it with the City officers who are responsible for her file. In the past, Ms. Mohammadi-Kia succeeded in deferring payment of the debt due to her financial circumstances.
Ownership of the Sold Property Is Not Relevant
[26] Finally, it does not matter that the house she and her son sold in 2017 was not hers. The property is sold and is therefore not affected by any writ that the City may now obtain.
Disposition
[27] I allow the City of Toronto to issue a writ in Durham region against Ms. Mohammadi-Kia up to the amount owing as of today’s date.
Costs
[28] At the end of a hearing in Civil Court, the successful party can ask to recover some of its legal costs from the unsuccessful party. These costs include the City’s legal fees for preparing the materials and attending to hearing, and related costs of photocopying, filing and providing a copy of the materials to Ms. Mohammadi-Kia.
[29] The City asks Ms. Mohammadi-Kia to pay $2972 for the time spent on the materials for this hearing and attendance at the hearing itself. This includes the related photocopying and other costs (referred to in the costs outline as “disbursements”).
[30] Rule 57.01 of the Rules of Civil Procedure gives the Court a great deal of discretion to make a costs award that is fair. In this case, the City of Toronto is seeking the Court’s indulgence having failed to file a writ within six years from the debt. While I have accepted its explanation, it should bear its own costs. I do not order Ms. Mohammadi-Kia to pay the City any costs for this motion.
Conclusion
[31] To be clear, Ms. Mohammadi-Kia still owes the City approximately $43,000. My order does not require her to pay the City. It simply allows the City to file a writ in Durham to capture property that she has, or may have, in the future. The value of the writ is limited to the amount outstanding as of today’s date (see paragraph 9 of Adelaide case cited above).