Court File and Parties
COURT FILE NO.: CV-18-594854 DATE: 20230824
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SINA AKHAVAN Plaintiff – and – SIAVASH TAHERI Defendant
COUNSEL: Danny M. Bertao, for the Plaintiff
HEARD: August 23, 2023 In Writing
BEFORE: Papageorgiou J.
Overview
[1] On December 24, 2020, the plaintiff obtained a judgment in the amount of $2,462,638.77 plus costs in the amount of $75,000. The defendant’s appeal was dismissed with costs in the amount of $25,000.
[2] Members of the Armenian community advised the plaintiff that on August 1, 2022, the defendant passed away.
[3] The plaintiff has made extensive efforts to ascertain the identity of the estate executor or administrator.
[4] These efforts included inquiries with the defendant’s 3 children (one of whom attended the trial with the defendant), his trial lawyer and his appeal lawyer. The defendant’s children and his appeal lawyer did not respond. His trial lawyer did respond and indicated that he did not know who acts for the estate.
[5] The plaintiff also conducted searches on the Ontario Gazette, and Notice Connect, where estate administrators publish notices to creditors or estates. These have not revealed any information.
[6] I add that the plaintiff has given evidence that during the course of the litigation, he learned that the defendant had transferred a significant sum of money to his son, and that he listed his condominium located at 650 Sheppard Ave E for sale. As a result, the Court made an order that the defendant not dispose of or encumber that property and that it stand as security for judgment.
[7] The plaintiff seeks an order to continue the action in the absence of a person representing the estate pursuant to r. 10.02, as well as leave to bring a motion in writing seeking a Norwich Order so that he can obtain documents from third parties to assist with enforcement.
[8] He brought this motion without notice, because there is no one to serve.
The issues
[9] The issues in this motion are: a) Whether an order to continue should be made in the absence of anyone representing the defendant’s estate; and b) Whether the plaintiff should be permitted to bring a motion for a Norwich Order in writing?
[10] For the reasons that follow, I am granting both requested Orders.
Analysis
Issue 1: The Order to Continue
[11] By way of background, because of the defendant’s death, the action here, which would include any enforcement proceedings, is stayed pursuant to r. 11.01 until an order to continue is obtained. It reads:
Effect of Transfer or Transmission 11.01 Where at any stage of a proceeding the interest or liability of a party is transferred or transmitted to another person by assignment, bankruptcy, death or other means, the proceeding shall be stayed with respect to the party whose interest or liability has been transferred or transmitted until an order to continue the proceeding by or against the other person has been obtained. R.R.O. 1990, Reg. 194, r. 11.01; O. Reg. 14/04, s. 9.
[12] There are provisions in r. 11 whereby an Order to Continue may be obtained by the person who seeks to represent the estate of the deceased. An order to continue pursuant to r. 11.02 can only be in favour of a party who is legally entitled to administer the estate of the deceased. The plaintiff cannot bring a motion seeking an Order to Continue pursuant to r. 11.02: Estate of Bryan Leslie Godkin v. MTM Financial Services, [1999] O.J. No. 5740.
[13] It has been more than a year since the defendant passed away. None of his family members have brought a motion for an Order to Continue. They must be content to leave this matter stayed since they have not done so, and since they have not responded to any of the plaintiff’s inquiries.
[14] Pursuant to r. 10.02 the matter can be continued in the absence of a person representing the estate of the deceased:
10.02 Where it appears to a judge that the estate of a deceased person has an interest in a matter in question in the proceeding and there is no executor or administrator of the estate, the judge may order that the proceeding continue in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent the estate for the purposes of the proceeding, and an order in the proceeding binds the estate of the deceased person, subject to rule 10.03, as if the executor or administrator of the estate of that person had been a party to the proceeding. R.R.O. 1990, Reg. 194, r. 10.02.
[15] Godkin v. MTM Financial Services held that r. 10.02 refers back to the list of certain types of proceeding set out in r. 10.01.
[16] One of those circumstances listed in r. 10.01 is “any other matter where it appears necessary or desirable to make an order under this subrule.”
[17] In my view, the circumstances present, where a judgment creditor has a significant judgment and no one representing the deceased has sought an Order to Continue, and furthermore where likely beneficiaries provide no information on who the executor or administrator is, is a circumstance where it is desirable to make an Order to Continue in the absence of a person representing the Estate.
[18] Were it otherwise, a judgment creditor would have no ability to recover his judgment where the beneficiaries or the Estate, or other persons who might be in a position to seek an Order to Continue, fail to do so pursuant to r. 11.02.
[19] Therefore, I grant the Order to Continue, without which this plaintiff would have no ability to execute on the judgment.
[20] If any of the defendant’s beneficiaries, family or any of his representatives had wished to represent his interests in this regard, they have had sufficient time to bring their own motion or they could have responded to the plaintiff’s inquiries.
[21] I will be directing that this Order be served on the defendant’s three children and the lawyer who conducted the appeal.
[22] Upon learning of this Order, if they wish to represent his interests, they may make the appropriate motion seeking any variation which they deem necessary. In the meantime, it has already been one year and further delay is not in the interests of justice.
Issue 2: The Norwich Order
[23] I am satisfied that the plaintiff should be permitted to bring a motion in writing seeking a Norwich Order.
[24] This endorsement and the Order signed by me shall be served on the defendant’s three children and his former appeal lawyer.
[25] Order to go as signed by me.
Papageorgiou J. Released: August 24, 2023
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: SINA AKHAVAN Plaintiff – and – SIAVASH TAHERI Defendant
REASONS FOR JUDGMENT
Papageorgiou J. Released: August 24, 2023