COURT OF APPEAL FOR ONTARIO
CITATION: Maftoun v. Banitaba, 2014 ONCA 35
DATE: 20140117
DOCKET: C55634
Rouleau, van Rensburg and Benotto JJ.A.
BETWEEN
Zahra Maftoun
Appellant (Plaintiff)
and
Seyed Hassan Banitaba, Mahmoud Zargar and Law Society of Upper Canada
Respondents (Defendants)
Zahra Maftoun, acting in person
Hossein Niroomand, for the respondent Seyed Hassan Banitaba
Mahmoud Zargar, acting in person
Heard: January 8, 2014
On appeal from the judgment of Justice Leonard Ricchetti of the Superior Court of Justice, dated May 22, 2012, with reasons reported at 2012 ONSC 2988, and his costs endorsement, dated July 27, 2012, with reasons reported at 2012 ONSC 4404.
Rouleau J.A.:
[1] The appellant appeals from the dismissal of her claim for damages in the amount of $2 million, a declaration that the divorce certificate (“Divorce Certificate”) prepared by the respondent Banitaba was either invalid in its entirety or to the extent that it purported to waive the appellant’s rights to the marriage gift in her marriage contract (“Marriage Gift”) and punitive damages for fraud, deceit and breach of trust in the amount of $100,000.
The trial judge’s reasons
[2] The heart of the appellant’s claim at trial was that the Divorce Certificate and divorce register prepared by Banitaba (“Divorce Register”) were altered fraudulently, after the appellant had signed these documents, to include a waiver of the Marriage Gift provided for in her marriage contract. The trial judge found the evidence of each of the parties to be troubling. He found much of the evidence of the appellant on the critical issues to be unsupported, nonsensical and exaggerated. He considered significant portions of the respondent Zargar’s evidence to be “simply not credible” and “inconsistent with his own pleadings.” However, with respect to Zargar’s version of the events and of his actions following the religious divorce, the trial judge found that this evidence was “much more consistent with the existence of the waiver in the Divorce Certificate at the time of the religious divorce,” whereas the appellant’s actions subsequent to her alleged discovery of the purportedly altered Divorce Certificate were “more consistent with her knowledge of the waiver at the time of the religious divorce….”
[3] As for Banitaba’s evidence, the trial judge rejected it completely, describing it as “complete nonsense,” “completely inconsistent” and making “no sense.”
[4] After assessing the credibility of the parties, the trial judge concluded that, on a balance of probabilities, the Divorce Certificates and the Divorce Register had not been altered after the fact, as alleged by the appellant. The trial judge based his decision on several facts including the following:
During the course of the religious divorce proceedings, Banitaba prepared two original booklets containing the Divorce Certificate. The Divorce Certificate contains the waiver of the Marriage Gift. One booklet was given to each of the parties at the conclusion of the religious divorce. The fraud would have required the alteration of both booklets;
The Divorce Register also contains the waiver. It is signed by both parties, and there is no apparent insertion on the page containing the waiver;
If Zargar sought to benefit from defrauding the appellant, he would have sought to immediately register the divorce certificate with the Iranian Embassy for it to become effective. He did not do so; and
The appellant’s actions subsequent to her purported discovery of the alleged alteration were more consistent with her knowledge of the waiver at the time of the religious divorce.
[5] The trial judge then went on to explain that, even if he had not rejected the appellant’s claim on the merits, he would have dismissed it on the basis that it was initiated beyond the applicable limitation period.
[6] In his costs endorsement, the trial judge explained that a reasonable costs award to each respondent would have been approximately $65,000 inclusive of disbursements and HST. He went on, however, to adjust the award to reflect amounts claimed that were not properly recoverable by the respondents as well as to reflect some of the actions taken by the respondents that contributed to the duration of the proceedings. This led the trial judge to award each of Zargar and Banitaba costs in the amount of $35,000, inclusive of disbursements and HST.
THE APPEAL
[7] The appellant argues that the trial judge erred in the treatment of the appellant’s oral testimony, was biased, erred in deciding the matter based on the appellant’s waiver of the marriage gift, erred in his factual findings, erred in concluding that the limitation period barred her claim and erred in his award of costs. The appellant also tendered fresh evidence on the day of the hearing that she maintains is relevant to the issues before us. I will deal with each of these in turn.
Did the trial judge err in his treatment of the appIellant’s oral testimony?
[8] The appellant argues that the trial judge misled himself by holding that the evidence of the appellant required independent corroboration in the form of supporting documents.
[9] I disagree. The trial judge noted the absence of corroboration but did not rely on this to reject the appellant’s testimony and her claim. He made well-reasoned credibility findings of all of the parties, weighed all of the evidence and explained how he came to his decision. His conclusions are fully supported by the record.
Was the trial judge biased?
[10] In her written arguments, the appellant also submits that the trial judge “displayed open hostility and actual or apprehended bias towards” her, and that various aspects of his reasons demonstrate such a bias.
[11] I reject this submission. The trial judge was even-handed and unbiased in what proved to be a difficult trial involving significant animosity between the parties. Before us, the appellant conceded that the trial judge was extremely polite at trial and did not show any sign he would be biased. There is simply nothing in the record or the reasons to sustain the appellant’s argument in this respect.
Did the trial judge err in deciding the case on the basis of waiver?
[12] The appellant also argues that the trial judge erred in deciding the case on the basis of the appellant’s waiver of the Marriage Gift. She argues that part way through trial, Zargar abandoned his original defence of waiver and proceeded with the defence that he had in fact paid the appellant the Marriage Gift.
[13] I disagree. The appellant has misunderstood the effect of Zargar’s reliance on an additional defence. In the course of trial, Zargar amended his defence to add the plea that he had paid the Marriage Gift. He did not, as the appellant suggests, withdraw the defence of waiver. There is nothing improper with Zargar having advanced alternative defences.
Did the trial judge err in his factual findings?
[14] The appellant maintains that the trial judge erred in concluding that she was a religious person, that the religious divorce was of value to her and that this explained why she waived her right to the marriage gift. As part of these submissions, the appellant argues that the trial judge erroneously found that she was the person who contacted Banitaba to effect the religious divorce.
[15] In my view, the trial judge did not err in his assessment of the facts or in his consideration of the appellant’s motives for waiving the Marriage Gift. As noted by the trial judge, there was little evidence to assist him in determining why the appellant would have agreed to waive her claim to the Marriage Gift. The absence of a clear motive was a factor that favoured the appellant’s argument that she never waived her marriage gift. The trial judge listed various possibilities but was unable to make a clear determination in this regard.
[16] The trial judge did not, as the appellant suggests, find that the appellant was a religious person, nor did he find that the appellant is the one who first contacted Banitaba. There is no comment in the reasons on the appellant’s religiosity. Similarly, in the portion of the reasons dealing with the contact between the appellant and Banitaba, the trial judge simply notes that the appellant had “prior dealings with Banitaba and arranged for the religious divorce.” This reflects the appellant’s evidence that she had sought out Banitaba from information she obtained in Persian newspapers, albeit after having been told about Banitaba by Zargar, and that she had spoken with Banitaba over the phone.
The limitation period
[17] As I would uphold the trial judge’s decision on the merits of the claim, I need not address the limitations issues raised by the appellant.
Did the trial judge err in his award of costs?
[18] The appellant argues that because the trial judge made strong adverse credibility findings, he should not have awarded costs to the respondents. The appellant also argues that she should have been entitled to costs against the respondents in light of their conduct, including having brought an unsuccessful motion for summary judgment at the start of trial as well as the mid-trial amendment by Zargar of his defence.
[19] I see no basis to interfere with the trial judge’s decision on costs, which is entitled to deference in this court. The trial judge’s reasons show that he considered all of the factors that the appellant now raises on appeal. Specifically, he took into account the fact that Banitaba’s evidence was totally rejected and that Zargar’s evidence was, in significant parts, simply not credible. The trial judge also noted that he had made adverse findings as to the appellant’s credibility. He concluded that it would not be unfair to grant costs in the circumstances because any cost reduction to account for his credibility findings “would benefit one party at the expense of the other when all parties were subject to the same finding.” The trial judge also took into account the conduct of the parties in the proceedings, as well as the respondents’ unsuccessful motion for summary judgment. His award was well-reasoned and fully justified in the circumstances.
The fresh evidence
[20] The appellant tendered fresh evidence on the day of the hearing in this court. The fresh evidence does not relate to the authenticity of the Divorce Certificates or Divorce Register. Some of the documents tendered suggest that Zargar may have misrepresented the timing of the sale of his business in Iran and the purchase of the property in Iran. Other material may have relevance to the limitations issues.
[21] As noted earlier, the trial judge found much of Zargar’s evidence to be questionable. Even if I were to accept that some of this fresh evidence raises further doubt as to aspects of Zargar’s testimony, it does not relate to the central issue in the case, nor to those aspects of Zargar’s testimony that were accepted by the trial judge. Moreover, the fresh evidence could, with diligence, have been obtained before trial.
[22] In my view, this evidence would not have had any impact on the result. I would, therefore, reject the motion to file fresh evidence.
CONCLUSION
[23] I would dismiss the appeal. As to costs of the appeal, I would award no costs to Zargar. He filed no materials and his only participation in the appeal was to appear on the date of hearing. As to Banitaba, I would award costs fixed in the amount of $3,500, inclusive of disbursements and applicable taxes.
“Paul Rouleau J.A.”
“I agree K. van Rensburg J.A.”
“I agree M.L. Benotto J.A.”
Released: January 17, 2014