Court of Appeal for Ontario

Date: 2018-12-04

Docket: M49834 (C65694)

Lauwers J.A. (In Chambers)

Between

Young-Hew Son and Young Son Respondents

and

Daud Ahmad Khan, Fawad Khan and Ishaq Ahmad Khan Appellants

Counsel and Parties Present

Appellants:

• Daud Ahmad Khan, in person
• Fawad Khan, in person
• Ishaq Ahmad Khan, not present

Respondents:

• David Nuri, for the respondents

Heard: November 28, 2018

Reasons for Decision

[1] I begin by explaining the context. It would be fair to describe this litigation as unduly complex and confused, largely because the appellants are floundering in the absence of legal advice. Kurz J. explained the history in his decision striking their defences, reported at 2018 ONSC 284. He noted, at para. 6:

Unfortunately, the Khan Defendants' response exposes one major problem. They have produced virtually no evidence to support their claims regarding this motion. All that I am left with is evidence of the Plaintiff regarding their obtuseness and unwillingness to obey orders. Those orders include documentary production orders, an order to attend for cross-examinations, and costs awards. For the reasons that follow I find that it is both appropriate and in the interests of justice to invoke the exceptional remedy of striking the pleadings of the Khan Defendants.

[2] Kurz J. added, at para. 97:

Accordingly, I find that allowing the Khan Defendants to continue acting in this litigation as if they are not bound by court orders would damage respect for the administration of justice in Ontario. At some point, enough is enough. I find that now is enough.

[3] The appellants did not appeal this order.

[4] There is an appeal scheduled to be heard in this court on February 8, 2019. It is from the order of Seppi J., dated June 26, 2018, which declared that the respondents "are vexatious litigants within the meaning of s. 140 of the Courts of Justice Act" and accordingly "may not institute any proceeding in any court except by leave of a judge of the Superior Court of Justice".

[5] The appellants seek a stay of the writ of seizure and sale until the appeal is heard on the vexatious litigants order on February 8, 2019. They also ask for an order giving them six months' time to arrange placement financing to pay out the judgments against them that survive any appeal, and they ask that the order be made lifting the Certificate of Pending Litigation so that they can take out a second mortgage to pay the cost award made by Ricchetti J. They note that there are four sick people who live in the house and will have nowhere to go if it is sold.

[6] There are three problems with the request. First, although permission from a Superior Court judge was not required for the appellants to appeal the order of Seppi J., it was required for them to bring the motion for a stay of the writ of seizure and sale. This court's decision in Attorney General of Ontario v. Reyes, 2017 ONCA 613 makes it clear that apart from the argument of the appeal of vexatious litigant order itself, any motions in that proceeding require leave of a Superior Court judge. They did not get permission.

[7] The second problem is that the appellants seek to stay the execution of a writ of seizure and sale that arises in a different proceeding. Ricchetti J. permitted a CPL to be registered against the appellants' property by order dated November 2, 2016. He fixed costs in the amount of about $25,000. The order was not appealed. The costs order was sent out for execution. The writ of seizure and sale was issued on April 11, 2018. By registered mail in September 2018, the appellants were advised that the house would be sold to satisfy the costs award.

[8] The court's decision in Reyes requires the appellants to obtain leave of a Superior Court judge to bring a motion for a stay of the writ of seizure and sale. The difficulty with that request for leave is that no appeal was brought from the order of Ricchetti J.

[9] The third problem is that after the pleadings were struck the respondents in the appeal obtained a default judgment in the main action from Justice Petersen, dated August 14, 2018, which requires the appellants to pay about $200,000. Remarkably, the appellants did not get a copy of the judgment until November 23, 2018, as conceded by Mr. Nuri after conferring with his principal. The appellants wish to seek leave to appeal the judgment of Petersen J., now that they know of its existence. That is also a matter for which they require the leave of a Superior Court judge, but do not have it.

[10] It is clear that the vexatious litigants order under appeal to this court is hampering any other appeals and the resolution of the basic dispute between the parties. In the unusual circumstances of this case I exercise my authority under s. 134(2) and grant a stay of the execution of the writ of seizure and sale until thirty days after the appeal is heard on the vexatious litigants order. The appellants would be well advised to hire a lawyer or get pro bono assistance.

P. Lauwers J.A.