Mehedi v. 2057161 Ontario Inc., c.o.b. as Job Success et al.

[Indexed as: Mehedi v. 2057161 Ontario Inc.]

Ontario Reports

Court of Appeal for Ontario,

Juriansz J.A. (in Chambers)

August 21, 2014

123 O.R. (3d) 73 | 2014 ONCA 604

Case Summary

Civil procedure — Trial — Re-opening — Trial judge dismissing plaintiff's action after finding defendants to be credible — Court of Appeal deferring to trial judge's credibility findings and dismissing appeal — Plaintiff seeking to re-open trial on basis of fresh evidence which called defendants' credibility into question — Rationale of rule 59.06(2)(b) applying even though appeal had been determined — Plaintiff permitted to bring motion under rule 59.06(1) before Superior Court judge other than trial judge — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 59.06(2)(b).

The plaintiff sued the defendants, alleging that they had defrauded him in a job placement program. The defendants denied guaranteeing the plaintiff a job placement upon graduation. The trial judge found the defendants to be credible and dismissed the action. The Court of Appeal deferred to the trial judge's findings of fact and credibility and dismissed the plaintiff's appeal. The CBC subsequently broadcast an episode of a consumer protection program which purported to expose how the defendants exploited vulnerable unemployed persons by promising to find them good jobs in exchange for fees. One of the defendants, who was unaware that he was being filmed, was asked if he was [page74 ]guaranteeing a job and said, "Absolutely". The self-represented plaintiff, who sought to reopen the trial and adduce fresh evidence in reliance on rule 59.06(2) of the Rules of Civil Procedure, brought a motion for directions.

Held, the motion should be granted.

The rationale of rule 59.06(2)(a) continues to apply even though an appeal has been determined. An appeal merely concludes that there was no reversible error at trial. The rule allows an order to be set aside or varied, not because of any mistake in the proceedings, but because it has become apparent that the decision was wrong due to fraud or other facts discovered after it was made. While a motion under rule 59.06(2) must be brought in the Superior Court, it need not be brought before the trial judge. As the trial judge in this case had already declined to hear the motion, the plaintiff should bring his motion before another judge in motions court in the ordinary way.

Cases referred to

671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, [2001] S.C.J. No. 61, 2001 SCC 59, 204 D.L.R. (4th) 542, 274 N.R. 366, J.E. 2001-1832, 150 O.A.C. 12, 17 B.L.R. (3d) 1, 11 C.C.E.L. (3d) 1, 8 C.C.L.T. (3d) 60, [2002] CLLC Â210-013, 12 C.P.C. (5th) 1, [2001] 4 C.T.C. 139, REJB 2001-25875, 108 A.C.W.S. (3d) 300; A.H. Al-Sagar & Brothers Engineering Project Co. v. Al-Jabouri, [1989] O.J. No. 2276, 46 C.P.C. (2d) 69, 18 A.C.W.S. (3d) 827 (H.C.J.); Aristocrat v. Aristocrat (2004), 2004 32256 (ON CA), 73 O.R. (3d) 275, [2004] O.J. No. 4031, 190 O.A.C. 327, 9 R.F.L. (6th) 26, 134 A.C.W.S. (3d) 242 (C.A.); Canada v. Granitile Inc., 2008 63568 (ON SC), [2008] O.J. No. 4934, 302 D.L.R. (4th) 40, 172 A.C.W.S. (3d) 1047 (S.C.J.); Janjua v. Khan, [2014] O.J. No. 1, 2014 ONCA 5; Lac Des Mille Lacs First Nation v. Viherjoki, [1996] O.J. No. 2333, 50 C.P.C. (3d) 94, 64 A.C.W.S. (3d) 193 (Gen. Div.); Mehedi v. 2052761 Ontario Inc., [2012] O.J. No. 269, 2012 ONCA 46; R. v. Moura, 2003 46485 (ON CA), [2003] O.J. No. 460, 169 O.A.C. 33, 172 C.C.C. (3d) 340, 56 W.C.B. (2d) 558 (C.A.); Tsaoussis (Litigation guardian of) v. Baetz (1998), 1998 5454 (ON CA), 41 O.R. (3d) 257, [1998] O.J. No. 3516, 165 D.L.R. (4th) 268, 112 O.A.C. 78, 27 C.P.C. (4th) 223 (C.A.), revg (1997), 1997 12148 (ON SC), 33 O.R. (3d) 769, [1997] O.J. No. 2292, 30 O.T.C. 161, 13 C.P.C. (4th) 136, 71 A.C.W.S. (3d) 1059 (Gen. Div.)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules, 1.03, 37.03, 37.14(4), 59.06(2), (a)

MOTION by the plaintiff for directions to set aside the order of Hainey J. of the Superior Court of Justice dated June 23, 2011.

Golam Mehedi, in person.

Christopher Stanek, for moving party.

No one appearing for responding party.

[1] JURIANSZ J.A. (in Chambers): — Mr. Mehedi has brought a motion seeking directions with respect to the court, the judge and the manner in which to introduce new evidence after final judgment at trial and the dismissal of his appeal. The new evidence he tenders is a broadcast by the CBC investigative journalism program Marketplace that purports to expose the [page75 ]defendants in his action as fraudsters. The colourful history of this matter demonstrates Mr. Mehedi's tenacity.

[2] Mr. Mehedi brought an action against 2057161 Ontario Inc., carrying on business as "Job Success", M.A. Hameed, Wendell Lacombe and Dale Smith, alleging they had defrauded him in a job placement program. Dale Smith is the owner of 2057161 Ontario Inc. Mr. Mehedi testified that Mr. Hameed and Mr. Lacombe promised him a job as a project manager with a salary of $70,000. He sought return of the $3,742 he paid Job Success and punitive damages to prevent the recurrence of similar behaviour. Mr. Hameed and Mr. Lacombe testified, along with another Job Success official, Gordon MacKay. All denied that they had promised they would find Mr. Mehedi a job.

[3] After a one-day trial, the trial judge ruled in favour of the defendants. The trial judge noted that Mr. Mehedi's written agreement with Job Success was for the provision of professional career development services to assist him in finding employment and did not guarantee a job placement. The trial judge preferred the evidence of Mr. Hameed and Mr. Lacombe. He said, "I carefully observed Mr. Hameed and Mr. Lacombe while they testified both in chief and under cross-examination and I find them both to be credible witnesses and I accept their evidence." He concluded that, on the evidence before the court, "there is no basis for finding that Job Success or any of the defendants made any promises or commitments to Mr. Mehedi that they did not fulfil".

[4] Mr. Mehedi's appeal to the Court of Appeal was dismissed on January 23, 2012 [[2012] O.J. No. 269, 2012 ONCA 46]. In a brief endorsement, the court deferred to the trial judge's findings of fact and credibility.

[5] On February 17, 2012, the CBC broadcast an episode of Marketplace titled "Recruitment Rip-off". Marketplace, using hidden cameras, purports to expose how a recruitment agency, carrying on business as "Toronto Pathways", exploits vulnerable unemployed persons by promising to find them good jobs in exchange for fees. The clients shown in the program are mainly unemployed immigrants newly arrived in Canada. The program shows Dale Smith acknowledging that "Toronto Pathways" and "Job Success" are the same business. Mr. Smith, the owner, states, "It is the same corporation. Same address. Brand marketing is the only reason for the change . . . Brand marketing just allows a fresh market approach." The program states that the company has changed business names five times in seven years.

[6] The program purports to show company officials unequivocally promising prospective clients that they will be provided good jobs to induce them to enter contracts. The defendant [page76 ]Mr. Lacombe is shown being asked by a Marketplace staffer, "So you're basically guaranteeing me that I'm going to get a job?", and responding, "Absolutely. And we are very good at it." The witness Mr. MacKay is also shown in the program. The program also shows numerous other individuals who make essentially the same allegations as Mr. Mehedi.

[7] Upon learning of the Marketplace broadcast, Mr. Mehedi has been attempting to reopen his trial. His position is that the defendants are slick liars who perjured themselves at trial. He submits that the new evidence provides good reason for revisiting the credibility findings made at trial, which the trial judge indicated were based on the demeanour of the witnesses. The easy and self-assured manner in which Mr. Lacombe responds, "Absolutely", to the Marketplace staffer provides considerable support for Mr. Mehedi's position.

[8] Mr. Mehedi has not been successful in having a court hear and determine his motion for fresh evidence.

[9] On March 23, 2012, Mr. Mehedi, acting in person, brought a motion in the Superior Court for judgment in his favour based on new evidence. The judge's handwritten endorsement explained that "he must first bring a motion to have the trial judgment set aside" and suggested "that he obtain legal advice because it is a difficult motion".

[10] Mr. Mehedi sought advice from counsel, who advised he needed to bring a motion to introduce new evidence and that the motion was properly brought before the judge who presided over the trial. On October 1, 2012, Mr. Mehedi had counsel write a letter to the trial judge asking for dates for the hearing of his motion to introduce new evidence. In response, he received a letter from the chief justice's executive legal officer dated October 9, 2012, advising that it was inappropriate to communicate with a judge directly, unless directed otherwise, and that he ought to schedule a motion through the court registry in accordance with the rules.

[11] The trial scheduling clerk advised Mr. Mehedi that a motion before the trial judge could not be booked as the motion scheduling office was not privy to the schedule of specific judges. The clerk advised him to obtain dates directly from the trial judge's office.

[12] On November 29, 2012, counsel for Mr. Mehedi contacted the trial judge's assistant to obtain dates for the motion and was advised that the trial judge was sitting in criminal court for the foreseeable future. The assistant advised that the trial judge suggested Mr. Mehedi bring a motion before a judge of the [page77 ]Superior Court for directions and to have a judge assigned to hear the motion to introduce new evidence.

[13] Mr. Mehedi brought a motion in the Superior Court on March 27, 2013, which was adjourned to September 10, 2013, and then to May 21, 2014. The motion judge's endorsement, dated May 21, 2014, states, "In view of the fact that this matter was heard and disposed of by the Court of Appeal, directions should be sought from that Court as to a motion to reopen the appeal for the introduction of newly discovered evidence."

[14] Mr. Mehedi has now returned to this court seeking advice and direction "with respect to the court, the judge and the manner in which a motion to introduce new evidence after final judgment at trial has been made".

Analysis

[15] Mr. Mehedi seeks to rely on rule 59.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides as follows:

59.06(2) A party who seeks to,

(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

(b) suspend the operation of an order;

(c) carry an order into operation; or

(d) obtain other relief than that originally awarded,

may make a motion in the proceeding for the relief claimed.

[16] In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, [2001] S.C.J. No. 61, 2001 SCC 59, the Supreme Court indicated that the discretion to reopen the trial is the trial judge's. The trial judge is in the best position to decide whether fairness dictates that the trial be reopened. The trial judge should exercise his or her discretion to reopen the trial "sparingly and with the greatest care" so that "fraud and abuse of the [c]ourt's processes" do not result: Sagaz, at para. 61.

[17] In Sagaz, however, the trial judge was asked to reopen the trial before the appeal, whereas in Mr. Mehedi's case, the appeal has already been heard and determined.

[18] In Aristocrat v. Aristocrat (2004), 2004 32256 (ON CA), 73 O.R. (3d) 275, [2004] O.J. No. 4031 (C.A.), the moving party's appeal to the Court of Appeal and his application for leave to appeal to the Supreme Court of Canada had been dismissed, when subsequently he claimed he discovered fresh evidence showing that his wife and daughter had induced the Court of Appeal to dismiss his appeal [page78 ]by reason of "false, fabricated, fraudulent and perjured evidence". He brought a motion in the Court of Appeal pursuant to rule 59.06(2)(a) to set aside the order dismissing his appeal. The matter was eventually heard by a panel of the court, which said, at para. 9:

Based upon his oral submissions and his response to questions from the court, it is apparent that Mr. Aristocrat's main concern is to re-open and set aside the original judgment of [the trial judge] as a judgment obtained by fraud. In order to accomplish this, he has moved under rule 59.06(2)(a). The Court of Appeal has no jurisdiction to hear such a motion. Such motions should be brought in the action before a judge of the Superior Court.

[19] The court in Aristocrat referred to an earlier case, R. v. Moura, 2003 46485 (ON CA), [2003] O.J. No. 460, 172 C.C.C. (3d) 340 (C.A.), in which Morden J.A. held that a motion to set aside an order of the Superior Court, affirmed on appeal, on the basis of newly discovered evidence of fraud should be brought in the Superior Court.

[20] The rationale of rule 59.06(2)(a) continues to apply even though an appeal has been determined. An appeal merely concludes there is no reversible error at trial. The rule allows an order to be set aside or varied, not because of any mistake in the proceedings, but because it has become apparent that the decision was wrong due to fraud or other facts discovered after it was made.

[21] While a motion under rule 59.06(2) must be brought in the Superior Court, it need not be brought before the trial judge. This is made clear by rule 37.14(4), which provides:

37.14(4) A motion under . . .any . . . rule to set aside, vary or amend an order[^1] of a judge may be made,

(a) to the judge who made it, at any place; or

(b) to any other judge, at a place determined in accordance with rule 37.03[.]

[22] Rule 37.03 merely requires that the motion be brought in the county where the proceeding was commenced or to which it has been transferred.

[23] Case law applying rule 59.06(2) confirms that rule 59.06(2) motions "may be made to the trial [j]udge or to a [j] udge in motions Court": Lac Des Mille Lacs First Nation v. Viherjoki, [1996] O.J. No. 2333, 50 C.P.C. (3d) 94 (Gen. Div.), at para. 11.

[24] Canada v. Granitile Inc., 2008 63568 (ON SC), [2008] O.J. No. 4934, 302 D.L.R. (4th) 40 (S.C.J.) is an example of a case where, under rule 59.06(2), a judge of the Superior Court set aside the judgment of [page79 ]another trial judge. Molloy J., the trial judge, found in favour of the plaintiffs in their action against Canada. Canada brought a rule 59.06(2) motion and Lederer J. held a trial on the issue of whether Molloy J.'s judgment in the plaintiffs' favour should be set aside because of the plaintiffs' fraud. Lederer J. ultimately concluded that Molloy J.'s judgment must be set aside.

[25] In Tsaoussis (Litigation guardian of) v. Baetz (1998), 1998 5454 (ON CA), 41 O.R. (3d) 257, [1998] O.J. No. 3516, 165 D.L.R. (4th) 268 (C.A.), Scott J. granted judgment by approving a settlement on behalf of a minor plaintiff. Leitch J., another judge of the Ontario Court (General Division), set aside the judgment on the basis of new evidence under rule 59.06(2) [ (1997), 1997 12148 (ON SC), 33 O.R. (3d) 679, [1997] O.J. No. 2292 (Gen. Div.)]. On appeal, the Court of Appeal concluded that Leitch J. erred in doing so because the new evidence at issue was available at the time of the initial judgment. The Court of Appeal did not hold that only Scott J. could set aside her own judgment under rule 59.06(2).

[26] While the law does not require the trial judge whose judgment is at issue to hear the rule 59.06(2) motion, it is preferable for the trial judge to do so. The trial judge is already familiar with all of the evidence at trial, and is well suited to expeditiously determine whether the alleged fraud or the new evidence requires the trial judgment to be set aside.

[27] In a recent chambers decision, Janjua v. Khan, [2014] O.J. No. 1, 2014 ONCA 5, the appellant, who had a rule 59.06(2) motion regarding the trial judgment pending in the Superior Court, also sought leave to appeal the trial judgment in the Court of Appeal. Lauwers J.A. dismissed the leave application to allow the rule 59.06(2) motion to proceed. He held, at para. 11:

. . . the preferable procedure in these circumstances is to allow the process before the Superior Court to unfold. It would perhaps be especially appropriate for [the trial judge] to hear the [rule 59.06(2)] motion to set aside her judgment on the basis of the fresh evidence. She would be in a superior position to contextualize the fresh evidence and to direct the trial of an issue if so advised.

[28] In A.H. Al-Sagar & Brothers Engineering Project Co. v. Al-Jabouri, [1989] O.J. No. 2276, 46 C.P.C. (2d) 69 (H.C.J.), Sutherland J., while clear that a motion under rule 59.06(2) may be brought before any judge in motions court in the ordinary way, seems to suggest that the motion should be brought before the trial judge where the findings of the trial judge are being called into question and the new evidence must be considered along with the evidence that was before the trial judge.

[29] In this case, Mr. Mehedi seeks to undermine the credibility findings made by the trial judge with the new evidence. [page80 ]However, as the trial judge has already declined to hear the motion, Mr. Mehedi must bring his motion before another judge in motions court in the ordinary way.

Conclusion

[30] Regretting the inconvenience Mr. Mehedi has encountered, I conclude that his motion to introduce new evidence should be brought in the Superior Court before a motion judge in the ordinary way.

[31] In the material before me, Mr. Mehedi filed the video and transcript of the Marketplace broadcast. He may consider attempting to obtain the entire hidden camera interviews with the defendants and retaining counsel to bring the motion.

Addendum Regarding Service

[32] The day after this motion was heard and taken on reserve, Mr. Dale Smith telephoned the court office to find out if there was a decision on the motion. He claimed that he had not been served with the motion. The court clerk advised that the decision was on reserve and that Mr. Smith could write a letter to the court stating he had not been served and requesting the opportunity to make submissions in writing. The court did not receive a letter from him.

[33] I am satisfied that this motion came to Mr. Smith's attention and that he did not take the opportunity to put his position before the court in writing. In the circumstances, I validate service of the motion. I also order that future service upon him may be made by ordinary mail at the address indicated in the affidavit of service of this motion, subject to a further order of a court or his serving and filing a different address for service.

Motion granted.

Notes

[^1]: "Order" includes a judgment (see rule 1.03).

End of Document