COURT FILE NO.: CV-23-00704962-0000 DATE: 20231103 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MOHAMMADHOSSEIN FODAZI and BELGHISSADAT SAJADIMOGHADAM, Plaintiffs AND: ROUNAK FARROKHI KOUKIA, ESTATE OF MOHAMMAD FODAZI, deceased, and PERSTILE INC.

BEFORE: VERMETTE J.

COUNSEL: Esmaeil Mehrabi, for the Plaintiffs Dimitrios Mylonopoulos, for the Defendant Rounak Farrokhi Koukia

HEARD: October 27, 2023, with supplementary written submissions delivered on November 2, 2023

ENDORSEMENT

[1] The Plaintiffs seek a Mareva injunction against the Defendants. This motion was brought on notice to the Defendants.

[2] The allegations of wrongdoing against the Defendants arise in the context of strained family relationships and include serious allegations of fraud against the Plaintiffs’ now-deceased son, his company and his common law spouse.

[3] Ultimately, I dismiss the motion as against the son’s estate and company because the evidence put forward is insufficient to meet the applicable test. However, the motion is granted in part as against the son’s common law spouse.

A. FACTUAL BACKGROUND

1. The parties

[4] The Plaintiffs, Mohammadhossein Fodazi (“Mr. Fodazi”) and Belghissadat Sajadimoghadam (“Ms. Sajadimoghadam”), are husband and wife. Their son, Mohammad Fodazi (“Mohammad”), passed away on January 29, 2023 at the age of 33. His estate is a Defendant (“Estate”), but no estate trustee has been appointed yet. The Plaintiffs have two other children: Saeed Fodazi and Nahid Fodazi.

[5] The Defendant Rounak Farrokhi Koukia (“Ms. Koukia”) was Mohammad’s common law spouse. They had a daughter together.

[6] The Defendant PersTile Inc. (“PersTile”) is a Canadian corporation that was incorporated by Mohammad in 2012. Based on the available corporate records, Mohammad was the only director of PersTile.

[7] Mohammad’s Estate and PersTile did not participate in this motion and were not represented by counsel.

2. Evidence on the motion

[8] The Plaintiffs’ Motion Record includes one affidavit: the affidavit of Mr. Fodazi.

[9] Ms. Koukia filed an affidavit in response. [1]

[10] In reply, the Plaintiffs filed three affidavits: (1) a second affidavit of Mr. Fodazi; (2) an affidavit of Ms. Sajadimoghadam; and (3) an affidavit of Saeed Fodazi.

[11] All affiants were cross-examined (Mr. Fodazi, Ms. Sajadimoghadam, Saeed Fodazi and Ms. Koukia). In addition, two persons were examined pursuant to Rule 39.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. They are the two real estate agents who were involved in a residential lease entered into by Ms. Koukia: Natalia Mazurkevich and Maria Ongaro.

[12] A second affidavit of Saeed Fodazi was delivered after the cross-examinations. Ms. Koukia did not object to the filing of this additional affidavit. Leave to file this affidavit is granted under Rule 39.02(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

3. Stays in Iran and Mohammad’s death

[13] The Plaintiffs often stay in their home country, Iran, for extended periods of time. Because of that, they had given access to their Canadian bank accounts and credit cards to their son Mohammad so that he could provide them with assistance with their Canadian accounts while they were in Iran and take care of any issues that may arise. According to Mr. Fodazi, his other children, Nahid and Saeed Fodazi, did not have access to the Plaintiffs’ Canadian bank accounts and credit cards.

[14] The Plaintiffs were in Iran for more than three years prior to Mohammad’s death, more specifically from December 2019 to March 2023. Prior to leaving for Iran in December 2019, they had stayed in Canada for approximately seven months.

[15] As stated above, Mohammad passed away in Canada on January 29, 2023. He passed away the day after he came back from Iran. He had been in Iran for almost two years, i.e., from March 2021 to January 28, 2023. Ms. Koukia was also in Iran from June 2021 to October 2022. She and Mohammad resided together while she was in Iran. Her evidence is that Mohammad came back to Canada twice between March 2021 and January 2023 in relation to the purchase and sale of a house in Sudbury, Ontario, including once during the summer of 2022.

[16] At the time of his death, Mohammad was in the house owned by Mr. Fodazi on Hillcrest Avenue in Toronto (“Hillcrest Property”), where Mohammad used to reside when he was in Canada. Even though the Plaintiffs’ daughter, Nahid Fodazi, was informed of Mohammad’s death within a couple of days of its occurrence, the Plaintiffs were not informed of their son’s death until approximately March 10, 2023, i.e., the day before Mohammad’s body arrived in Iran for burial.

[17] On March 23, 2023, the Plaintiffs came back to Canada and went to the Hillcrest Property. Their evidence is that a number of items were missing from their home, including Mohammad’s laptop and cell phone, some ID cards belonging to the Plaintiffs, cheque books, and renewed bank cards and credit cards that arrived while they were out of the country. They made a report to the police. Ms. Koukia admits to taking Mohammad’s laptop and cell phone, but she denies removing anything from the house that did not belong to her or Mohammad.

[18] The Plaintiffs subsequently discovered what they allege to be fraudulent transactions that occurred in their Canadian bank accounts and credit card while they were out of the country. These alleged fraudulent transactions are discussed below.

[19] This action was commenced on August 23, 2023, five months after the Plaintiffs’ return to Canada.

4. BMO line of credit

[20] In March 2021, while he was in Iran and with the assistance of Mohammad, Mr. Fodazi obtained a line of credit with BMO in the amount of $565,000.00 (“Line of Credit”). After Mohammad’s death, Mr. Fodazi found out that Mohammad and PersTile had transferred substantially all of the available funds in the Line of Credit to themselves. Mr. Fodazi states that this occurred without his knowledge or consent and that his signature was forged by Mohammad on the cheques that were used.

[21] A total of $522,000 was paid to PersTile using cheques of Mr. Fodazi:

a. cheque dated August 18, 2021 in the amount of $95,000.00; b. cheque dated August 23, 2021 in the amount of $145,000.00; c. cheque dated August 30, 2021 in the amount of $192,000.00; and d. cheque dated October 1, 2021 in the amount of $90,000.00.

[22] Further, an additional $42,000.00 was paid to Mohammad directly from the Line of Credit using a cheque dated August 14, 2021. Mr. Fodazi also alleges that his signature was forged on this cheque.

[23] I note that, based on the evidence before me, Mr. Fodazi, Mohammad and Ms. Koukia were all in Iran in August 2021 and October 2021 when the cheques were made and deposited.

[24] Mr. Fodazi alleges that Mohammad sent e-mails to BMO under Mr. Fodazi’s name, pretending to be him, for the purpose of arranging for the minimum payment for the Line of Credit to be made out of Mohammad’s own account rather than Mr. Fodazi’s account. The e-mails were sent using the e-mail address mhfodazi@gmail.com. Mr. Fodazi states that he did not send these emails and he did not have knowledge that Mohammad was sending them.

[25] Mr. Fodazi states the following in his affidavit:

Mohammad pretended to be me using my email address and provided instructions to BMO representatives so that the Line of Credit monthly payments would be made out of his own account. Mohammad and PersTile Inc. set up the payments this way so that their fraudulent actions would remain undetected by me and my wife while we were in Iran and had limited access to our accounts.

Since Mohammad had instructed BMO representatives that the Line of Credit payments should be automatically debited from his own account, I did not become aware that my funds had been depleted from the Line of Credit until recently.

[26] I note that Mr. Fodazi’s “theory” is undermined by the fact that the e-mails that were sent to BMO about setting up a pre-authorized debit plan were sent in July 2022, almost one year after the cheques to PersTile and Mohammad were made and negotiated.

[27] After the banks became aware of Mohammad’s death, his bank accounts were frozen until the appointment of an estate trustee. This prevented the Line of Credit payments from being automatically debited out of Mohammad’s account. The Plaintiffs were subsequently told that their Line of Credit was in default and they had to start making the payments on the Line of Credit.

[28] Ms. Koukia’s evidence is that the Line of Credit was to be a gift to Mohammad from his father, and that Mr. Fodazi was fully aware of the transactions on the Line of Credit. She also states that in and around December 2021, Mr. Fodazi gave Mohammad a further gift of $231,000.00 to assist in making a downpayment on the purchase of a property in Sudbury, Ontario. Ms. Koukia attaches as an exhibit to her affidavit a “Down Payment Gift Letter” on CIBC letterhead that appears to be signed by both Mohammad and Mr. Fodazi. This document states that Mr. Fodazi is making a financial gift in the amount of $231,000 to Mohammad “for use toward the purchase of the property located at 1079 Moss St., Sudbury Ontario”. Mr. Fodazi denies signing this document or having any knowledge about it.

[29] After Ms. Koukia filed her responding affidavit and the cross-examinations took place, the Plaintiffs filed the supplementary affidavit of Saeed Fodazi. This affidavit contains evidence that on December 7, 2021, Mohammad wrote a cheque to himself out of the bank account of PersTile in the amount of $231,000.00. The Plaintiffs’ position is that the cheque from PersTile shows that the $231,000.00 payment was not a gift from Mr. Fodazi. However, there is no information before me as to the source of the $231,000.00 in PersTile’s account and whether this sum came from the Line of Credit cheques that were deposited a few months earlier.

5. Purchases on Ms. Sajadimoghadam’s credit card

[30] The Plaintiffs accuse Ms. Koukia of having made purchases using Ms. Sajadimoghadam’s credit card after Mohammad’s death. The alleged purchases, which total $10,681.14, are the following:

a. February 22, 2023 Basic Funerals $9,000.00 b. March 7, 2023 Starbucks Coffee $100.00 c. March 13, 2023 Rogers $373.17 d. March 19, 2023 Apple.com $1,207.97

[31] The Plaintiffs allege, without supporting evidence, that Ms. Koukia “engaged in the unauthorized activation of this Visa card and pretended to be [Ms. Sajadimoghadam] during the activation process”.

[32] Ms. Koukia acknowledges using Ms. Sajadimoghadam’s credit card with respect to the first expense listed above, Basic Funerals, but she denies making any of the other expenses. With respect to the Basic Funerals expense, Ms. Koukia’s evidence is that Nahid Fodazi told her that she would provide her with payment information and authorization for Ms. Sajadimoghadam’s credit card, which Ms. Koukia could use to pay for a portion of Mohammad’s funeral. Ms. Koukia attaches to her affidavit a copy of the alleged authorization sent via WhatsApp. The document is dated February 4, 2023 and appears to be signed by Ms. Sajadimoghadam. Ms. Koukia states that the authorization was provided to her by Nahid Fodazi using Ms. Sajadimoghadam’s WhatsApp account. However, I note that the WhatsApp number that appears on the document is Nahid Fodazi’s number, not Ms. Sajadimoghadam’s number. Ms. Koukia points out that had she possessed Ms. Sajadimoghadam’s credit card information and had she engaged in the activation of the card by impersonating Ms. Sajadimoghadam, as alleged by the Plaintiffs, she would have had no need for Ms. Sajadimoghadam’s executed authorization.

[33] Ms. Sajadimoghadam denies signing or filling out any authorization allowing Basic Funerals to place a charge on her credit card, and she states that she has no knowledge of the document on which Mr. Koukia relies. This is supported by the fact that Ms. Sajadimoghadam did not know about her son’s death on February 4, 2023.

[34] Ms. Sajadimoghadam subsequently declined the charge from Basic Funerals and refused to pay for part of her son’s funeral expenses. Ultimately, Ms. Koukia paid for them.

[35] In her affidavit filed in reply to Ms. Koukia’s affidavit, Ms. Sajadimoghadam includes hearsay evidence from her daughter, Nahid Fodazi, under the excuse that she is in Iran. This hearsay evidence includes, among other things, new allegations that Ms. Koukia also gained access to Nahid Fodazi’s banking information and used the information to transfer funds from Nahid Fodazi’s bank account to herself without Nahid Fodazi’s authorization.

[36] I do not give any weight to this hearsay evidence. In my view, given the allegations made by Ms. Koukia against Nahid Fodazi on this motion, and given the new allegations raised for the first time by Nahid Fodazi through her mother in reply, Nahid Fodazi should have provided direct evidence on this motion. The fact that she may currently be in Iran does not prevent her from communicating with the Plaintiffs’ lawyer and providing affidavit evidence. This is supported by the fact that she was able to communicate with her mother and to record and send videos that are attached to her mother’s affidavit.

[37] One of the exhibits to Ms. Sajadimoghadam’s affidavit purports to be a screen recording of all of Nahid Fodazi’s conversations in WhatsApp with Ms. Koukia. The recording shows that Ms. Fodazi and Ms. Koukia exchanged hundreds of messages on WhatsApp after Mohammad’s death. Given that the messages are written in Farsi and have not been translated into English, this Court is unable to read them. However, the recording shows that a few of the messages exchanged between the two women have been deleted by Nahid Fodazi. No explanation has been provided for the deletions.

6. E-transfers from the Plaintiffs’ bank accounts to Mohammad after his death

[38] Between February 23, 2023 and March 27, 2023, thirteen e-transfers of $1,000 each were made from the Plaintiffs’ personal banking account at RBC to Mohammad at m.fodazi@yahoo.ca, for a total of $13,000. The e-transfers were made on the following dates: February 23, March 6, 7, 8, 9. 10, 13 (x2), 14, 16, 17, 24, and 27, 2023. The Plaintiffs’ evidence is that these e-transfers were made without their knowledge or consent.

[39] Between February 21, 2023 and March 22, 2023, seven e-transfers were made from Mr. Fodazi’s personal banking account at BMO to Mohammad at mikefodazi@gmail.com. Each e-transfer was in the amount of $3,000.00, except for the last one which was in the amount of $1,500.00, for a total of $19,500.00. The e-transfers were made on the following dates: February 21, 22, 23, March 1, 2, 3 and 22, 2023. Mr. Fodazi’s evidence is that these e-transfers were made without his knowledge or consent.

[40] There is evidence before me that the e-transfers sent to Mohammad at mikefodazi@gmail.com were then forwarded to Ms. Koukia’s e-mail address (rounakkoukia@gmail.com).

[41] Mr. Fodazi states the following in his affidavit:

[Ms. Koukia] was able to access the funds in my bank account by resetting both my email and online banking passwords, and then withdrawing the funds in my account. The transfers referred to in paragraphs 29 and 30, above, were initially made via e-transfer and sent to Mohammad’s account, which Rounak then forwarded to her own account.

[42] There is no direct evidence of Ms. Koukia resetting e-mails and passwords or accessing the Plaintiffs’ bank accounts. Ms. Koukia’s evidence is that she does not have access to the e-mail accounts m.fodazi@yahoo.ca and mikefodazi@gmail.com. With respect to the mikefodazi@gmail.com account, she states that she does not have the information necessary to access the account because the recovery phone number for this account was reset shortly after Mohammad’s passing to a phone number that is not her phone number.

[43] With respect to the m.fodazi@yahoo.ca account, Saeed Fodazi has produced e-mails that were sent to him from this account after Mohammad’s death. The contents of the e-mails strongly suggest that the sender of these e-mails is Ms. Koukia.

[44] After reiterating that she does not have access to Mohammad’s e-mail accounts, Ms. Koukia states the following in her affidavit:

In any event, with respect to the transactions referred to in paragraphs 29, 30, and 31 of the Fodazi Affidavit, these amounts were transferred and paid out to me in partial satisfaction of longstanding invoices to Mr. Fodazi, Nahid Foudazi, Belghissadat [Sajadimoghadam], and Saeed Foudazi for immigration and legal services rendered by my company, Golden Globe Inc. Attached hereinafter as Exhibit H are the invoices of Golden Globe Inc.

These invoices remain outstanding. I approached Nahid [Fodazi] regarding payment of these long overdue invoices, and she advised that she would have them paid out. The sums transferred to me, and referenced in paragraphs 29, 30, and 31 of the Fodazi Affidavit, are payments in partial satisfaction of the above-mentioned invoices.

[45] Five invoices are attached to Ms. Koukia’s affidavit, with dates from July 6, 2014 to April 11, 2022, and amounts that range between $15,820.00 and $35,595.00.

[46] Mr. Fodazi, Ms. Sajadimoghadam and Saeed Fodazi acknowledge using Ms. Koukia’s services for some minor administrative immigration matters several years ago, but they state that her fees were paid at that time and that they never authorized any payments to Ms. Koukia for any such purpose this year.

7. Cheque from RBC account

[47] On May 16, 2023, a cheque made out to PersTile in the amount of $5,000.00 from Mr. Fodazi’s RBC bank account was deposited into PersTile’s account. The cheque was dated January 28, 2023, i.e., the day before Mohammad’s death, and purports to be signed by Mr. Fodazi. Mr. Fodazi alleges that his signature was forged on this cheque.

[48] I note that the handwriting on this cheque, including Mr. Fodazi’s purported signature, looks different than on the cheques from the Line of Credit.

[49] Ms. Koukia’s evidence is that she has no access to PersTile’s accounts and, therefore, she has no knowledge of this cheque.

[50] There is no direct evidence that Ms. Koukia has access to PersTile’s account(s). Mr. Fodazi states in his affidavit that “it is suspected that [Ms. Koukia] has access to all of the accounts of PersTile Inc.”, but he also states that the extent of her involvement with PersTile is not within his knowledge. In an affidavit filed after the cross-examinations, Saeed Fodazi attaches a cheque dated September 8, 2014 (i.e., 9 years ago) from PersTile to Gustavo Roso Enterprises in the amount of $282.50 that is said to be signed by Ms. Koukia with the letters “POA” (presumably, power of attorney) preceding her signature.

[51] As stated above, Ms. Koukia denies having access to any of the corporate accounts of PersTile, and she states that she has no authority whatsoever in PersTile. She attaches to her affidavit an e-mail from PersTile’s accountant dated February 12, 2023 stating that PersTile has no value.

8. Saeed Fodazi obtains access to some of Mohammad’s e-mail accounts

[52] On March 28, 2023, Saeed Fodazi gained control of the e-mail accounts mikefodazi@gmail.com and mhfodazi@gmail.com by temporarily transferring Mohammad’s Rogers wireless number under his name. This allowed him to view the e-mails in these two accounts. However, Saeed Fodazi did not gain access to the e-mail accounts m.fodazi@yahoo.ca and mikefodazi@perstile.com.

[53] Saeed Fodazi states that Ms. Koukia “resorted to threats and harassment directed towards me upon discovering I had access to the Rogers number and emails.” He attaches to his affidavit an e-mail that he received from Ms. Koukia on March 28, 2023, as well as a number of posts that Ms. Koukia made on X (formerly Twitter) on March 28, 2023 complaining about Rogers and alleging, among other things, that Rogers had transferred her phone number to a serial killer.

9. Mohammad’s will and alleged wrongdoing in relation to the Estate

[54] Mohammad signed a will dated November 1, 2017 which names Ms. Koukia as the sole beneficiary and estate trustee of his Estate.

[55] On June 1, 2023, Ms. Koukia prepared an Application for a Certificate of Appointment of Estate Trustee (“Estate Application”) and affirmed that the information contained in it was true to the best of her knowledge and belief. The Estate Application states, among other things, that:

a. Mohammad’s last occupation was “Custom Builds Designer”; b. his marital status was “Common Law Partner”; c. at the time of his death, his residence was the Hillcrest Property; d. he did not own any real property at the date of death; e. he owned personal property at the date of death with a value of $396,576.75, including $391,576.75 in funds in Mohammad’s bank account; and f. debts payable by the Estate total $172,171.89.

[56] There is no information in the Estate Application or before me as to the source of the funds in Mohammad’s bank accounts. While the 2021 funds from the Line of Credit referred to above are a possible source, there is evidence in the record that on January 5, 2023, Mohammad sold a condominium property in Toronto for $990,000.00.

[57] Mr. Fodazi has filed a Notice of Objection to the appointment of Ms. Koukia as estate trustee on the basis that she is not fit or competent to be appointed. The validity of Mohammad’s will is not contested.

[58] The Plaintiffs allege that Ms. Koukia has been mishandling the Estate’s funds. Mr. Fodazi attaches to his affidavit an invoice under Mohammad’s name in the amount of $1,671.78 relating to the purchase of a purse from Balmain Paris. The invoice indicates that the “Order date” is March 25, 2023, the “Document date” is March 27, 2023, and the purse was shipping from Ferrières-en-Brie in France. A DHL receipt is also attached showing that the shipment was delivered on March 29, 2023.

[59] Ms. Koukia states the following in her affidavit regarding this purse:

Specifically, with respect to paragraph 38 of the Fodazi Affidavit, Mr. Fodazi references the purchase of a luxury purse from Balmain Paris. This purse was purchased by Mohammad while he and I were in Dubai, in and around July of 2022. Mohammad gave the distributor his credit card details as they, at the time, did not have the particular purse in stock. We were advised that they would only charge and ship the purse when the purse was in fact in stock. I had all but forgotten about the purse by the time it arrived. Mohammad’s card was charged the purchase price and shipping after his death.

[60] As discussed in more detail below, Ms. Koukia gave different evidence regarding the purchase of this purse during her cross-examination.

[61] There is also evidence that after Mohammad’s death, e-transfers totalling $44,220.00 were made from Mohammad’s bank accounts (including accounts at RBC and Scotiabank) to Mohammad at mikefodazi@gmail.com on the following dates:

a. February 24 (x2): $2,000 and $1,000; b. March 1 (x2): $1,000 and $3,000; c. March 2: $3,000; d. March 3: $1,000; e. March 5: $2,000; f. March 6: $3,000; g. March 7 (x3): $3,000, $2,000 and $2,000; h. March 8: $1,000; i. March 12: $3,000; j. March 13 (x2): $1,500 and $3,000; k. March 14: $3,000; l. March 15: $1,000; m. March 18: $220; n. March 24 (x2): $1,500 and $3,000; o. March 25: $3,000; and p. March 27: $1,000.

[62] These e-transfers were forwarded to Ms. Koukia’s gmail address.

[63] On February 25, 2023, CIBC Banking sent an e-mail to Mohammad at the address mikefodazi@perstile.com stating that he had recently made a $2,000 cash advance with his CIBC Aventura Visa Infinite card. This e-mail was forwarded to the address mikefodazi@gmail.com on February 25, 2023, and the forwarded e-mail in the mikefodazi@gmail.com account was subsequently forwarded to Ms. Koukia’s gmail address on February 26, 2023.

[64] Again, Ms. Koukia denies having access to Mohammad’s accounts or to PersTile’s accounts and she states that, in any event, “these payments were made to satisfy the outstanding invoices for legal services rendered to” the Plaintiffs, Nahid Fodazi and Saeed Fodazi.

[65] In further support of the Plaintiffs’ allegations of wrongdoing against Ms. Koukia in relation to the Estate, Mr. Fodazi attaches to his affidavit a rental application dated March 22, 2023 (on an Ontario Real Estate Association form) which lists both Mohammad and Ms. Koukia as applicants to rent a property in King City at a monthly rental of $5,500. On the rental application, Ms. Koukia’s occupation is described as “Lawyer/CEO of Company”. Ms. Koukia is a Regulated Canadian Immigration Consultant, not a lawyer. Mohammad’s occupation is described as “Professional Architecture Designer”. The rental application purports to be signed by Ms. Koukia and Mohammad using DocuSign. The document attached to Mr. Fodazi ‘s affidavit also includes a formal Agreement to Lease for the property that was signed on March 24, 2023 through Authentisign by the landlords, the two real estate agents involved, Ms. Koukia and, purportedly, Mohammad. I will refer to these documents as the “Rental Documents”.

[66] Ms. Koukia states in her affidavit that she has no knowledge of the Rental Documents attached to Mr. Fodazi’s affidavit, that she has no recollection of ever executing them and that she does not have access to the mikefodazi@gmail.com account. She further states that she executed a Residential Tenancy Agreement on her own for a tenancy beginning on April 1, 2023 for the same property that is included in the Rental Documents. A copy of the Residential Tenancy Agreement is attached to Ms. Koukia’s affidavit. The Agreement was signed on April 13, 2023.

[67] In his affidavit filed in reply, Saeed Fodazi states that he is the one who discovered the Rental Documents attached to his father’s affidavit when he obtained access to Mohammad’s e-mail account. His evidence is that after making this discovery, he contacted the real estate agent named on the Rental Documents and informed her that Mohammad had passed away. He also sent her a copy of Mohammad’s death certificate on April 3, 2023. This was confirmed by the real estate agent during her cross-examination. She stated that, after the lease was signed but before Ms. Koukia received the keys, someone called her to let her know that Mohammad was not alive and she subsequently received a text message with the death certificate.

10. Strained relationships

[68] There is evidence before me that Mohammad had a strained relationship with his family, particularly with his father. The same can be said with respect to the relationship between Ms. Koukia and Mohammad’s family. In his affidavit, Mr. Fodazi does not appear to recognize Ms. Koukia as Mohammad’s common law spouse as he states that, in the Estate Application, Ms. Koukia “claims that she was the common law spouse of Mohammad”. Nowhere does he mention the fact that Ms. Koukia and Mohammad had a daughter together.

[69] Two disturbing communications are attached to Ms. Koukia’s affidavit:

a. a WhatsApp message from Nahid Fodazi to Ms. Koukia, in which Nahid Fodazi makes threatening statements and states, among other things, that Ms. Koukia should have buried Mohammad in the backyard of the Hillcrest Property and not tell anyone about his death instead of involving the police; and b. a letter dated February 2, 2015 from Mr. Fodazi to Mohammad in which Mr. Fodazi accuses Mohammad, among other things, of theft and deceit, and of having stolen two million dollars from Mr. Fodazi in the last five and a half years. Mr. Fodazi states that he prays to God to grant him enough time to witness Mohammad’s misfortune and adversity, and that he “wish[es] for your rest in the dark soil as soon as possible.”

[70] In her affidavit, Ms. Koukia states that the Plaintiffs never approved of her relationship with Mohammad and that their relationship was a source of disappointment and anger for the Plaintiffs. She expresses the view that the allegations made against her by the Plaintiffs are born out of confusion, spite and the desire to bully her and bring harm to her and her family.

[71] Ms. Koukia mentions in her affidavit that the Plaintiffs have levied the same allegations as the ones raised in this action against her in other claims. Among other things, the Plaintiffs have commenced legal action against Ms. Koukia in Iran.

11. Alleged risk of dissipation of assets

[72] Mr. Fodazi states the following in his affidavit regarding the risk of dissipation of assets:

[Ms. Koukia] has systematically and fraudulently taken substantial funds from the Estate without any authority to do so and [Ms. Koukia] has misappropriated the funds for her own benefit. There is a real and substantial risk that [Ms. Koukia] will dissipate or alienate her assets and the assets of the Estate and PersTile Inc., or assets held on their behalf and that my wife and I will not [be] able to access such funds as [Ms. Koukia] has the ability to move the funds to other jurisdictions outside of Ontario and Canada, including her native country of Iran.

[73] Ms. Koukia responds as follows in her affidavit:

There is no risk that I will remove assets from the jurisdiction. I have not moved assets, nor do I intend. I do not have access to the accounts to move the assets. And, in any event, I verily believe that Mohammad’s account and PersTile Inc.’s account are frozen and or inactive at this time due to Mohammad’s death and the dispute regarding my application for a Certificate for Estate Trustee.

I verily believe that the Plaintiffs have failed to make out a case in this matter and, specifically, that there is a risk that I am removing, or will remove, assets from the jurisdiction, or will dissipate the assets of Mohammad’s Estate or PersTile Inc. PersTile Inc. does not possess assets and even if it did, I have no access to its accounts. I do not have access to any of Mohammad’s accounts and have not yet been provided with a Certificate of Estate Trustee.

B. DISCUSSION

[74] Before turning to the test applicable to the granting of a Mareva injunction, I will discuss some credibility issues in this case.

1. Credibility issues

a. Ms. Koukia

[75] After considering Ms. Koukia’s evidence, including the evidence she gave during her cross-examination, I find that there are significant issues regarding her credibility. Her evidence contains numerous inconsistencies and statements that are not believable. While Ms. Koukia gave undertakings to provide documents or information in support of some of her improbable answers, she did not answer any undertakings prior to the hearing, even though her cross-examination took place more than twenty days prior to the hearing.

[76] The following are some of the inconsistencies and problematic statements in her evidence:

a. Ms. Koukia stated that she did not have a key to the Hillcrest Property at the time of Mohammad’s death, even though her evidence is that: (i) she lived there with Mohammad when he was in Canada, (ii) she furnished the house herself, (iii) she had personal belongings in the house, and (iv) she maintained the Hillcrest Property in the family’s absence. Her evidence is that she was able to go inside the house after Mohammad’s death because the police gave her a key (without contacting the owner of the house), which key they took from a friend of Mohammad who had a key. This is implausible. b. Ms. Koukia’s evidence is that she no longer has a key to the Hillcrest Property, but she does not remember what she did with the key. This is not believable. c. Ms. Koukia was asked questions about the Estate Application that she prepared. She stated that the figure regarding the amount of funds in Mohammad’s bank accounts was based on bank statements that came to the Hillcrest Property. She further stated that she no longer had these statements because she left them at the Hillcrest Property and the last time that she went to the Hillcrest Property was in March 2023. When asked how she knew what figure to include in the Estate Application that she prepared a few months later (in June 2023), she gave unresponsive answers and ultimately said that the figure was based on the latest bank statement and that she should have a copy of it. She gave an undertaking to produce a copy, but she did not do so. Her evidence is inconsistent. It is much more likely that Ms. Koukia has electronic access to Mohammad’s bank accounts, which allows her to know the balance in the accounts. d. While Ms. Koukia denied knowing anything about PersTile, she stated that she had authorization from Mohammad to talk to his accountant about PersTile matters. She also stated that she “was not sure” whether PersTile received bank statements, even though PersTile’s address is Ms. Koukia’s office. She gave an undertaking to look in her file and see if she had any bank statements for PersTile, but she did not answer the undertaking. Again, her evidence is inconsistent. e. One reason given by Ms. Koukia in support of her position that she would not have any bank statements for PersTile in her possession was that Mohammad “was doing everything electronically when he was alive”. If that was the case, then he would logically not have received statements for his other accounts either. This raises doubts regarding Ms. Koukia’s evidence that she obtained the information included in her Estate Application from bank statements that were received at the Hillcrest Property, as opposed to electronic access to Mohammad’s accounts. f. When asked about an e-mail regarding a cash advance in the account mikefodazi@gmail.com that appears to have been forwarded to her, Ms. Koukia stated that she did not remember forwarding the e-mail and that in order to determine if she received that e-mail in her mailbox, she “would have to look into it.”. It is not believable that Ms. Koukia would not know the answer to this question after receiving the Motion Record and preparing a responding affidavit. Ms. Koukia gave an undertaking to find out if she forwarded the e-mail to herself and whether she received it in her mailbox, but she did not answer the undertaking. g. With respect to the Balmain purse, Ms. Koukia stated during her cross-examination that she had received the purse in February 2023 and that it was a purchase made for Valentine’s Day 2023. This version is completely inconsistent with the invoice for the purse and the DHL delivery receipt, which show that the purse was ordered, shipped and received in March 2023. It is also inconsistent with the evidence in her affidavit. I similarly do not accept the evidence in her affidavit on this point because it is improbable as well as inconsistent with the invoice, including the invoice’s date and the place from which the purse was shipped. h. Ms. Koukia’s evidence regarding the Rental Documents is, generally speaking, unbelievable. I do not accept Ms. Koukia’s evidence that she did not have an agent and she dealt with the landlord directly. This evidence is inconsistent with the evidence of the two real estate agents who are independent witnesses, with no interest in this matter. Further, Ms. Koukia’s credibility is also affected by her willingness to complete the Rental Documents in a misleading fashion, e.g., by including a dead applicant and misrepresenting that she was a lawyer. i. After stating without any qualification that her bank accounts in Iran were closed, Ms. Koukia was asked for evidence that that was the case. She then started giving a vague and mostly unresponsive answer and then admitted that she did not know whether Mohammad had closed her accounts in Iran or not. j. Ms. Koukia’s evidence that she does not have access to Mohammad’s e-mail accounts is simply not believable in light of: (i) numerous e-mails showing that she forwarded e-mails in the mikefodazi@gmail.com account to herself; and (ii) the fact that she sent a number of e-mails to Saeed Fodazi from the m.fodazi@yahoo.ca account. It is possible that Ms. Koukia may no longer have access to the mikefodazi@gmail.com account, but I find that she had access to that account when the impugned e-transfers occurred and until Saeed Fodazi gained access to it. This is further supported by her reaction and communications after Saeed Fodazi gained access to Mohammad’s gmail accounts. k. Ms. Koukia’s evidence that the e-transfers made from the Plaintiffs’ bank accounts to mikefodazi@gmail.com and m.fodazi@yahoo.ca were made by Nahid Fodazi to pay invoices for immigration-related services, some of which were provided several years ago, does not make sense. If the intent was to pay Ms. Koukia for services provided, it would not make sense for the funds to be sent to Mohammad’s e-mail addresses, especially if, as alleged by Ms. Koukia, she does not have access to them. Further, the manner in which the payments were made – multiple payments were made, over several days, at two different e-mail addresses, in amounts ranging from $1,000 to $3,000 – does not reflect the payment of invoices. Finally, if Nahid Fodazi had decided to pay Ms. Koukia’s invoices in this manner, one would expect to see something in writing (e-mails, WhatsApp message, etc.), explaining how and when the payments were going to be made. Ms. Koukia has not provided any communications from Nahid Fodazi in support of her allegations, even though the two of them have exchanged hundreds of messages on WhatsApp.

[77] Given Ms. Koukia’s failure to provide any answers to the undertakings she gave and her failure to provide any explanation for not providing answers, I draw an adverse inference from Ms. Koukia’s failure to answer undertakings and conclude that the answers to the undertakings would not have supported her position on this motion.

b. Mr. Fodazi

[78] There are also some inconsistencies in Mr. Fodazi’s evidence.

[79] Mr. Fodazi stated the following in his affidavit:

At times, Mohammad would ask if he could borrow money from me and I would provide him with funds as I have always done with my other children from time to time. I would either send Mohammad funds directly from Iran or if there were funds here in Canada, I would give him the money he requested from the funds here.

[80] During his cross-examination, Mr. Fodazi gave different evidence on this point:

Q. Okay. If we go down to paragraph 13, you indicate at paragraph 13... I am going to read it directly from here:

“... At times, Mohammad would ask if he could borrow money from me, and I would provide him with funds, as I have always done with my other children from time to time...”

You also say:

“... I would either send Mohammad funds directly from Iran or, if there were funds in Canada, I would give him the money he requested from the funds here...”

So, in the three years prior to Mohammad's death, did Mohammad ever ask to borrow money from you?

A. It was not money being borrowed or lent. Of course, he was a young man, and whenever he needed some money for his basic needs, he was not working, so whenever... and he had all the access to the accounts. So, whenever he needed money, he was accessing there, he could use the money from the account.

Q. Okay. So, I mean, paragraph 13 specifically states that,

“... Mohammad would ask if he could borrow money from me, and I would provide him with funds, as I have always done...”

Your answer to me…

THE INTERPRETER: Yes.

MR. MYLONOPOULOS: Go ahead.

BY MR. MYLONOPOULOS:

Q. So, your answer to me seems to indicate that that was not the arrangement and that, instead, Mohammad was simply at liberty to take whatever money he needed for his expenses?

A. But I mentioned that in Iran, he had access to the accounting, be able to go and get whatever that he needs. What I meant was in Iran.

Q. So, while in Iran, Mohammad was at liberty to use his access to your accounts and funds. But while in Canada, he was not to do so? This is related to your Canadian assets.

A. He had access in Canada, as well, because he was checking the accounts to see if the money needs to be there, to make sure that the money is there.

Q. I am aware that he had access. I am trying to understand paragraph 13 of the affidavit, because in paragraph 13, Mr. Fodazi says at times, Mohammad would ask Mr. Fodazi to borrow money from him, and Mr. Fodazi would provide him with the funds. So, are there any occasions, in the three years prior to Mohammad’s death, where this arrangement took place? [Emphasis added.]

[81] After some discussion between counsel, Mr. Fodazi stated that he could not recall Mohammad asking to borrow money from him during the three years preceding his death. He also stated that Mohammad normally did not return Mr. Fodazi’s money.

[82] While not 100% clear, Mr. Fodazi’s evidence on cross-examination appears to be that whenever Mohammad needed money, he was accessing the Plaintiffs’ accounts and he could use the money from the accounts. This is supported by other statements made by Mr. Fodazi, including that: (a) Mohammad did not have a job; and (b) Mohammad did not ask to borrow money from Mr. Fodazi for at least three years. If Mohammad did not have a job, he would likely have needed money during the three years preceding his death, but Mr. Fodazi did not remember any money being “borrowed” during that time period. This is consistent with Mohammad freely accessing the funds in his parents’ bank accounts if he needed money, without asking them for permission first. This paints a different picture of how the money flowed between Mr. Fodazi and Mohammad than the one described in Mr. Fodazi’s affidavit.

[83] This inconsistency and vagueness in Mr. Fodazi’s evidence is troubling given the serious allegations he makes against his son.

[84] Mr. Fodazi also stated in his affidavit that when the Plaintiffs went to the Hillcrest Property after arriving from Iran in March 2023, they observed that the house had been left “in a state of disarray” and that there were a number of items which were missing, including a BMO chequebook. This evidence was undermined during Mr. Fodazi’s cross-examination. The Plaintiffs had not been at the Hillcrest Property for more than three years and, as a result, they would not have known the state of the Hillcrest Property while Mohammad lived there. In addition, some of the items mentioned as missing belonged (or likely belonged) to Mohammad (e.g., safe box, desktop computer) and they could have been removed from the house by him for a variety of reasons and a long time before March 2023. Further, Mr. Fodazi stated during his cross-examination that he was not aware of one of the alleged missing item, a BMO chequebook, because that account was opened by Mohammad while Mr. Fodazi was in Iran. While the issue of what exactly was missing from the Hillcrest Property in March 2023 is not very significant, the above shows that Mr. Fodazi’s affidavit contains exaggerated and speculative statements, and this puts in question the reliability of his evidence on other points.

[85] The affidavit of Mr. Fodazi contains other statements that are speculative, unsupported and/or not within his personal knowledge, and some of them have already been mentioned in the Factual Background section above (e.g., the allegation that Ms. Koukia engaged in the unauthorized activation of Ms. Sajadimoghadam’s credit card).

2. Applicable test for a Mareva injunction

[86] In order to obtain a Mareva injunction, the Plaintiffs must establish the following:

a. a strong prima facie case that they will succeed at trial against the Defendants; b. the Defendants have assets in the jurisdiction; c. there is a real risk that the Defendants will remove property or dissipate assets before judgment; d. irreparable harm if the injunctive relief is not granted; and e. the balance of convenience favours granting an interlocutory injunction.

See 1999269 Ontario Limited v. Aguiar, 2023 ONSC 787 at para. 46 (“Aguiar”) and Li Yang (Canada) Holdings Co. Ltd. v. LYSR Management Ltd., 2023 ONSC 2569 at para. 20.

[87] In addition, absent unusual circumstances, the Plaintiffs must provide the undertaking as to damages normally required for any interlocutory injunction. Here, in accordance with Rule 40.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Mr. Fodazi has provided an undertaking to abide by any court order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damages to the Defendants for which the Plaintiffs ought to compensate them.

[88] To show a strong prima facie case, the Plaintiffs must show a strong likelihood on the law and the evidence presented that, at trial, they will be ultimately successful in proving the allegations set out in their Statement of Claim. See R. v. Canadian Broadcasting Corp., 2018 SCC 5 at paras. 17-18.

[89] The risk of removal or dissipation of assets can be established by inference, as opposed to direct evidence. Such an inference may arise from the circumstances of the fraud itself, taken in the context of all the surrounding circumstances. It is sufficient to show that all the circumstances, including the circumstances of the fraud itself, demonstrate a serious risk that the defendant will attempt to dissipate assets or put them beyond the reach of the plaintiff. See Sibley & Associates LP v. Ross, 2011 ONSC 2951 at paras. 63-64 and Aguiar at para. 47.

3. Application to this case

[90] I find that the Plaintiffs have established the elements of the test for a Mareva injunction with respect to some of their claims, but not others.

a. Claims against the Estate

[91] In my view, the Plaintiffs have not established that they meet the test for a Mareva injunction as against the Estate. The claims against the Estate relate to the payments that were made using the Line of Credit prior to Mohammad’s death. There are a number of issues with respect to the Plaintiffs’ claim against the Estate.

[92] First, the action is not properly constituted as against the Estate. Subsection 38(2) of the Trustee Act, R.S.O. 1990, c. T.23, provides that “if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person’s property, the person wronged may maintain an action against the executor or administrator of the person who committed or is by law liable for the wrong.” [Emphasis added.]

[93] Rule 9.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 states that where it is sought to commence a proceeding against the estate of a deceased person who has no executor or administrator, the court on motion may appoint a litigation administrator to represent the estate for the purpose of the proceeding. The Plaintiffs have not brought such a motion.

[94] Rules 9.03(2) and (6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provide as follows:

Proceeding Brought by or against Estate

(2) A proceeding commenced by or against the estate of a deceased person,

(a) by naming “the estate of A.B., deceased”, “the personal representative of A.B., deceased” or any similar designation; or (b) in which the wrong person is named as the personal representative,

shall not be treated as a nullity, but the court may order that the proceeding be continued by or against the proper executor or administrator of the deceased or against a litigation administrator appointed for the purpose of the proceeding, and the title of the proceeding shall be amended accordingly.

Stay of Proceeding until Properly Constituted

(6) No further step in a proceeding referred to in subrule (2), (3), (4) or (5) shall be taken until it is properly constituted and, unless it is properly constituted within a reasonable time, the court may dismiss the proceeding or make such other order as is just.

[95] As a result of the provisions set out above, in the absence of an estate trustee, a litigation administrator needs to be appointed. Until then, the action as against the Estate is stayed.

[96] Even if I were prepared to “overlook” this deficiency, there are other issues. Section 13 of the Evidence Act, R.S.O. 1990, c. E.23 states that in an action against the executors or administrators of a deceased person, an opposite party shall not obtain a decision on their own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence. The full text of section 13 reads as follows:

In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

[97] Section 13 addresses the obvious disadvantage faced by the dead: they cannot tell their side of the story or respond to the living’s version of events: see Burns Estate v. Mellon (2000), 48 O.R. (3d) 641 at para. 5 (C.A.) (“Burns Estate”). This concern is particularly acute in this case given that the Estate, in the absence of an estate trustee, was not in a position to respond to the motion and did not participate.

[98] The corroboration required under section 13 should be such as to enhance the probability of truth of the witness’ evidence upon a substantive part of the case raised by the pleadings: see Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854 at para. 65 (“Brisco Estate”). The corroboration must be evidence independent of the evidence of the opposite or interested party, which shows that the opposite or interested party’s evidence on a material issue is true. The corroborating evidence can be either direct or circumstantial. It can consist of a single piece of evidence or several pieces considered cumulatively. See Burns Estate at para. 29, Botnick v. The Samuel and Bessie Orfus Family Foundation, 2011 ONSC 3043 at paras. 13-16; aff’d by 2013 ONCA 225, and Moses v Metzer, 2016 ONSC 1765 at para. 6.

[99] While this proceeding was commenced against the Estate, it should have been commenced against the executor or administrator of the deceased person, as set out in subsection 38(2) of the Trustee Act (see above). Therefore, section 13 of the Evidence Act applies to the Plaintiffs’ claim against the Estate. [2]

[100] Mr. Fodazi’s bald allegations that his signature was forged by Mohammad on numerous documents are not corroborated by any independent evidence. The cheques themselves are not evidence of anything. No handwriting analysis evidence has been filed, and Mr. Fodazi has not even provided an explanation as to why he believes that the signatures in issue are not his. Mr. Fodazi’s allegation that Mohammad sent e-mails to BMO representatives without his knowledge is also uncorroborated. Given that Mohammad was authorized by the Plaintiffs to deal with issues regarding their bank accounts, the fact that Mohammad sent e-mails to BMO on behalf of his father does not show that the e-mails were sent without Mr. Fodazi’s knowledge or consent. There is no evidence before me as to how Mohammad was generally communicating with banks on behalf of his parents, and how the mhfodazi@gmail.com e-mail address was otherwise used.

[101] Further, the inconsistency in Mr. Fodazi’s evidence as to whether Mohammad needed his permission to use funds in his accounts highlights the concerns that underlie section 13 of the Evidence Act. It also emphasizes the need for corroboration and, more generally, demonstrates the insufficiency of the evidence put forward in support of the very serious allegations raised against Mohammad.

[102] These and related reasons – inconsistencies in the evidence, unsupported bald allegations and issues regarding the reliability of the evidence – support the conclusion that the Plaintiffs have failed to establish a strong prima facie case as against the Estate, even if section 13 of the Evidence Act does not apply. Given that the Plaintiffs’ very serious allegations against Mohammad arise in the context of a complicated family relationship with a significant history of funds being provided to Mohammad by the Plaintiffs, clear, reliable and cogent evidence – and more than bald allegations – is necessary to establish a strong prima facie case of what amounts to theft and fraud.

[103] I also note that, at this time, there is no real risk of the Estate removing property or dissipating assets because, as acknowledged by the parties, the Estate’s bank accounts are currently “frozen” pending the appointment of an estate trustee. Whether there could be a risk of dissipation in the future is speculative as it would depend in large part on who is appointed as estate trustee and any conditions or terms imposed on the appointment.

[104] Therefore, the motion is dismissed as against the Estate.

b. Claims against PersTile

[105] I am similarly of the view that the Plaintiffs have not established that they meet the test for a Mareva injunction as against PersTile.

[106] While PersTile is a corporation with a separate legal personality, it was owned and controlled by Mohammad, and is an asset of the Estate. Pending the appointment of an estate trustee, no one has the authority to take steps on its behalf. While Rules 9.02 and 9.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and section 13 of the Evidence Act, R.S.O. 1990, c. E.23 are not strictly applicable to the claim against PersTile, the rationale that underlies these provisions applies to PersTile in the circumstances of this case.

[107] However, I do not need to determine whether Rules 9.02 and 9.03 and section 13 could be applied to PersTile. As stated above, I have found that even if these provisions do not apply, the Plaintiffs have not established a strong prima facie case as against the Estate. The same reasoning applies to PersTile with respect to the payments that were made using the Line of Credit prior to Mohammad’s death. Further, there is no real risk of dissipation of assets on the part of PersTile at this time, for the reasons stated above.

[108] The Plaintiffs also raise a claim against PersTile with respect to the cheque from the Plaintiffs’ RBC account made out to PersTile in the amount of $5,000 that was deposited in PersTile’s account on May 16, 2023 (i.e., more than three months after Mohammad’s death). I find it unnecessary to have a detailed discussion of the test in relation to this claim because, in my view, a $5,000 claim cannot justify the imposition of the drastic and extraordinary remedy of the Mareva injunction. At a minimum, the balance of convenience does not favour granting a Mareva injunction in such circumstances. Further, as noted above, there is no real risk of dissipation of assets on the part of PersTile at this time.

[109] Therefore, the motion is dismissed as against PersTile.

c. Claims against Ms. Koukia

[110] The Plaintiffs have established a strong prima facie case with respect to some of their claims against Ms. Koukia, but not all of them.

[111] In my view, the Plaintiffs have not established a strong prima facie case against Ms. Koukia with respect to the purchases on Ms. Sajadimoghadam’s credit card. The allegation that Ms. Koukia engaged in the unauthorized activation of the credit card is unsupported by any evidence. In addition, there is no evidence linking the expenses at Starbucks Coffee, Rogers and Apple.com to Ms. Koukia. I also note that these expenses are less than $2,000.00.

[112] With respect to the Basic Funerals expense, I draw an adverse inference against the Plaintiffs based on their failure to provide affidavit evidence of their daughter, Nahid Fodazi. Further, and in any event, the Plaintiffs have not suffered any damages with respect to this expense as the charge was reversed at Ms. Sajadimoghadam’s request and she ultimately did not pay for it.

[113] I am also of the view that the Plaintiffs have not established a strong prima facie case against Ms. Koukia with respect to the e-transfers totalling $44,220 that were made from Mohammad’s bank accounts to Mohammad at mikefodazi@gmail.com in February and March 2023, or the other funds that Ms. Koukia took from the Estate (e.g., the purchase of the Balmain purse).

[114] The Plaintiffs argue that Ms. Koukia is a trustee de son tort with respect to the Estate as she took it upon herself after Mohammad’s death to act as a trustee and to possess and administer the Estate’s property. They submit that she committed a breach of trust when she transferred the Estate’s funds to herself without having satisfied, or ensured that the Estate had enough assets to satisfy, the Estate’s liabilities.

[115] An estate trustee has a fiduciary obligation to both beneficiaries and creditors of an estate. The estate trustee is obligated to first satisfy the estate’s liabilities before making distributions to beneficiaries because it is a breach of the trustee’s fiduciary duty to do otherwise: see D’Onofrio v. Riley, 2023 ONSC 4764 at paras. 26-27.

[116] The Plaintiffs are not beneficiaries of the Estate. They can only have a cause of action with respect to the distribution of the Estate’s assets if they have a cause of action against the Estate and can show that they are creditors of the Estate. However, I have already found that the Plaintiffs have not established a strong prima facie case against the Estate on this motion. I also note that there is no evidence before me that the Plaintiffs had made a claim against the Estate at the time the impugned transfers or payments were made (i.e., in February and March 2023) or that Ms. Koukia should have known at that time that Mohammad’s parents were going to take the position that they were creditors of the Estate and were owed hundreds of thousands of dollars.

[117] Thus, given that the Plaintiffs have failed to establish a strong prima facie case against the Estate, they have also failed to establish a strong prima facie case against Ms. Koukia with respect to any dealings with the Estate’s assets.

[118] However, I find that the Plaintiffs have established a strong prima facie case as against Ms. Koukia with respect to the e-transfers from the Plaintiffs’ bank accounts to Mohammad – at both m.fodazi@yahoo.ca and mikefodazi@gmail.com – after Mohammad’s death. The evidence shows that Ms. Koukia had access to these two e-mail accounts. She also had Mohammad’s laptop and phone. This gave her the means to obtain the necessary information to access the Plaintiffs’ bank accounts, to which Mohammad had access, and then to make e-transfers to Mohammad which she forwarded to herself for her own use. While there is no direct evidence of this, the circumstantial evidence is very strong and convincing, and Ms. Koukia has failed to provide any credible explanation. I note that all the e-transfers took place before Saeed Foudazi obtained access to the mikefodazi@gmail.com account on March 28, 2023. Ms. Koukia was the only person who had access to Mohammad’s e-mail accounts at the relevant time. For the reasons set out above, I have already rejected Ms. Koukia’s allegation that the e-transfers to Mohammad were made by Nahid Fodazi in relation to invoices for immigration services.

[119] In light of the foregoing, the Plaintiffs have, at the very least, established a strong prima facie case of unjust enrichment against Ms. Koukia. There is also a strong prima facie case that Ms. Koukia deprived the Plaintiffs dishonestly of funds which were theirs and to which they were entitled: see Wawrzkiewicz v Integrated Distribution Systems Limited Partnership, 2017 ONSC 1664 at para. 11.

[120] In my view, the other elements of the test for a Mareva injunction are also met with respect to the e-transfers. Ms. Koukia has assets in Ontario. She lives here with her three children and she has a business as a regulated immigration consultant.

[121] Based on all the circumstances, including the manner in which Ms. Koukia defrauded the Plaintiffs, I find that there is a real risk that Ms. Koukia will dissipate assets before judgment. Assets and funds can be dissipated within the jurisdiction, and, in coming to the conclusion that there is a real risk of dissipation of assets, I have not given any weight to the allegation that there is a risk that Ms. Koukia could transfer assets to Iran. Rather, I rely on Ms. Koukia’s clandestine behaviour, her concealment, evasiveness and deception, her willingness to be untruthful in general and under solemn affirmation in the context of a court proceeding, and her failure to provide any explanation or information as to what has happened to the funds that were transferred.

[122] Given the real risk of dissipation of assets, I find that the Plaintiffs would suffer irreparable harm if a Mareva injunction was not granted because it is unlikely that they would be able to collect an eventual judgment against Ms. Koukia. Ms. Koukia has not adduced evidence that she has the means to satisfy a judgment. See Wallace v. Pristine Developments, 2021 ONSC 2794 at paras. 32-34, 36.

[123] However, given the drastic nature of a Mareva injunction and the limited amount in issue (i.e., approximately $35,000), the balance of convenience must be seriously considered. The proposed draft Order [3] provides as follows with respect to Ms. Koukia: (a) “if the total value, free of charges or other securities, of [Ms. Koukia’s] assets in Ontario exceeds $150,000.00, [Ms. Koukia] may sell, remove, dissipate, alienate, transfer, assign, encumber, or similarly deal with them so long as the total unencumbered value of [Ms. Koukia’s] assets in Ontario remain above $150,000.00”; and (b) the Order will cease to have effect if Ms. Koukia provides security by paying the sum of $150,000.00 into Court. In addition, the proposed draft Order contains the usual provisions regarding ordinary living expenses and expenses related to legal advice and representation, as well as the possibility to apply to the Court to vary or discharge the Order.

[124] In my view, in light of the provisions of the draft Order, the balance of convenience favours granting a Mareva injunction as long as the “freezing amount” in the draft Order is reduced from $150,000.00 to $40,000.00. Thus, if Ms. Koukia is able to pay the sum of $40,000.00 into Court as security, the Mareva injunction will cease to have effect. If she is not able to pay such an amount, the freezing impact of the Mareva Order will be limited to $40,000.00.

[125] In light of the foregoing, I grant a Mareva injunction against Ms. Koukia for some of the claims made against her by the Plaintiffs, i.e., the claims related to the e-transfers made from the Plaintiffs’ bank accounts to Mohammad after his death. The scope of the Mareva injunction is to be limited to $40,000.00.

C. CONCLUSION

[126] The motion is dismissed as against the Estate and PersTile. It is granted in part as against Ms. Koukia. The scope of the Mareva injunction is to be limited to $40,000.00.

[127] The Plaintiffs are to prepare a revised draft Order based on this endorsement and send it to my assistant after it has been approved as to form and content by Ms. Koukia’s lawyer. If counsel cannot agree on the form and content of the Order, they should contact my assistant to schedule a case conference before me. With respect to the “Third Parties” section of the draft Order, I note that no specific banks or accounts are listed in Schedule “A” with respect to Ms. Koukia. In my view, specific financial institutions must be identified to obtain an order against third parties. Given that the disclosure obligation imposed on the Third Parties in the draft Order is in the nature of a Norwich Order, I find that, at a minimum, there must be some evidence that the third party/financial institution “is somehow involved in the acts complained of”: see GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 610 at para. 50. There is no such evidence before me with respect to any financial institution used by Ms. Koukia. The Plaintiffs may be able to request an amendment to the Order on this point at a different time, based on additional evidence (e.g., after disclosure of information by Ms. Koukia).

[128] If the parties cannot reach an agreement on costs, the Plaintiffs shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, by November 17, 2023. Ms. Koukia shall deliver her responding submissions (with the same page limit) by December 1, 2023. If they wish, the Plaintiffs may deliver reply submissions of not more than one page (double-spaced) by December 8, 2023. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.

Vermette J. Date: November 3, 2023

Footnotes

[1] The Plaintiffs ask that paragraph 16 of the affidavit of Ms. Koukia be struck. Ms. Koukia does not object to the last sentence of that paragraph being struck, which was the sentence that the Plaintiffs objected to. As a result, I have not considered that sentence.

[2] The Plaintiffs argue, based on paragraph 63 of the Court of Appeal’s decision in Brisco Estate, that section 13 of the Evidence Act does not apply to the Plaintiffs’ case because its application is limited to circumstances in which the interested party claims as an heir, next of kin, executor, administrator or assignee. The Plaintiffs point out that they commenced this claim as creditors of the Estate, not in any capacity as an heir, next of kin, etc. I reject this argument. The wording of section 13 is clear: section 13 applies to both an action by or against heirs, next of kin, executors, administrators or assigns. In the passage relied upon by the Plaintiffs, the Court of Appeal only referred to a claim by an heir, etc., because this was the situation that it was dealing with in Brisco Estate. The Court of Appeal certainly did not intend to delete the words in section 13 that also include claims against heirs, next of kin, executors, administrators or assigns. See Burns Estate at para. 5.

[3] The proposed draft Order is generally based on the Model Mareva Order used by the Commercial List and found on this Court’s website.