Court of Appeal for Ontario

CITATION: Wilson v. 2246519 Ontario Inc., 2016 ONCA 244

DATE: 20160405

DOCKET: C60217 (M45925)

Doherty, Cronk and Pepall JJ.A.

BETWEEN

Stewart Wilson

Plaintiff (Respondent)

and

2246519 Ontario Inc., Sara Fatahi-Ghandehari, Farzaneh Yaghinali and Sahel Tahvildari

Defendants (Appellants)

Counsel:

Shahzad Siddiqui, for the appellants

Paul Robson, for the respondent

Heard: March 30, 2016

On appeal from the order of Justice Douglas K. Gray of the Superior Court of Justice, dated March 3, 2015.

ENDORSEMENT

[1] The proceeding before the motion judge turned on the execution of a trust agreement, which provided that the assets of the appellant 2246519 Ontario Inc. (the "company") belonged to the respondent Stewart Wilson, and not to the company or its sole shareholder, the appellant Farzaneh Yaghinali.

[2] This was a fact driven decision. The motion judge was entitled to accept the evidence of Tyrone Crawford, the lawyer who prepared the trust agreement, witnessed its execution by the respondent and Farzaneh Yaghinali, and identified their signatures.

[3] We see nothing in the reasons of the motion judge to cause us to conclude that he made any material errors in his credibility finding. We also reject the appellants' submission that there was any procedural unfairness.

[4] As part of his order, the motion judge granted a certificate of pending litigation ("CPL") against residential property. The motion judge granted this term on his own initiative. It was not pleaded nor requested by the respondent and the appellants were given no opportunity to address the issue. Moreover, at the hearing itself, it was confirmed that the respondent's claim to the residential property was not before the court at that time. In these circumstances and in light of rule 42.01(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the motion judge erred in granting a CPL.

[5] The appellant sought to introduce fresh evidence consisting of a DVD and a transcript of an audio-visual recording. The evidence does not meet the test for admission of fresh evidence on appeal. It is neither relevant nor would it be expected to have affected the result.

[6] Accordingly, for these reasons, the motions for leave to introduce fresh evidence are dismissed and we allow the appeal in part by varying the order to delete paragraph 5 granting the CPL. These reasons should not be interpreted as precluding the respondent from seeking a CPL in the future if considered appropriate. In all other respects, the appeal is dismissed.

[7] The respondent is entitled to his costs of the appeal and the motions, which we fix in the total amount of $9,200, inclusive of disbursements and applicable taxes.

"Doherty J.A."

"E.A. Cronk J.A."

"S.E. Pepall J.A."