Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20221207 DOCKET: COA-22-OM-0066

Zarnett J.A. (Motion Judge)

BETWEEN

Sara Fatahi-Ghandehari Applicant (Responding Party)

and

Stewart Wilson Respondent (Moving Party)

Counsel: Samir Chhina, as agent for the moving party Jerald J.D. MacKenzie, for the responding party Kamla Lewis, for the proposed intervener Elizabeth Wilson

Heard: November 30, 2022 by video conference

Endorsement

Introduction

[1] The moving party, Stewart Wilson, moves for an extension of time to appeal the decision of LeMay J., dated May 19, 2021 (the “May 2021 Judgment”). The May 2021 Judgment directed, among other things, that Mr. Wilson pay the responding party, Sara Fatahi-Ghandehari, substantial spousal support, an equalization payment of more than $1.2 million, and costs.

[2] The May 2021 Judgment was rendered after an uncontested trial in which Mr. Wilson did not participate. By a court order made in September 2018 (the “September 2018 Order”), Mr. Wilson’s pleadings had been struck out and an uncontested hearing had been directed in which Mr. Wilson was denied permission to participate, after he was found in contempt for failure to make full financial disclosure in violation of court orders. The September 2018 Order was not successfully appealed.

[3] On June 18, 2021, Mr. Wilson served a notice of appeal seeking to appeal the May 2021 Judgment. But he did not serve an appellant’s certificate respecting evidence in a timely way, and Ms. Fatahi-Ghandehari did not agree to accept one that was late. Service of both was required to properly commence the appeal: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 61.04(1). No steps were taken to pursue any appeal of the May 2021 Judgment until this motion, brought approximately seventeen months later.

[4] In the meantime, Mr. Wilson, alleging that Ms. Fatahi-Ghandehari “made numerous fraudulent and falsified submissions” to obtain the May 2021 Judgment, brought a motion to LeMay J. under r. 59.06(2) [1] of the Rules of Civil Procedure. That subrule provides that a “party who seeks to … have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made … may make a motion in the proceeding for the relief claimed”.

[5] LeMay J. dismissed the r. 59.06 motion on August 19, 2022: Fatahi-Ghandehari v. Wilson, 2022 ONSC 4799. He considered that some of Mr. Wilson’s allegations had been raised and rejected earlier in the proceedings, and any proposed new evidence could have been put forward earlier by the exercise of due diligence. He concluded, at para. 58:

I should be clear as to the scope of this dismissal so that there are no misunderstandings. My finding is that, for all purposes, the issue of whether Ms. Fatahi-Ghandehari or her counsel engaged in any fraud in this case has been finally determined by this Court and will not be revisited by me (emphasis in the original).

[6] Mr. Wilson has filed an appeal from that dismissal (COA-22-CV-0205). If the time for his appeal from the May 2021 Judgment is extended, he asks that both appeals be joined together.

[7] At the outset of the hearing of this motion, Mr. Wilson requested an adjournment, which Ms. Fatahi-Ghandehari opposed. I refused to grant the adjournment and proceeded to hear the motion. The reasons that follow explain why I refused to grant the adjournment and also explain why I now dismiss the motion to extend.

Analysis

(1) Denial of Adjournment

[8] Mr. Wilson requested an adjournment of his motion to extend for three reasons: he wished to cross-examine Ms. Fatahi-Ghandehari on the affidavit she delivered in opposition to this motion, in order to demonstrate her alleged fraud in procuring the May 2021 Judgment; he wanted this court’s assistance in obtaining the lower court’s record of the proceedings leading up to the May 2021 Judgment to help in showing Ms. Fatahi-Ghandehari’s alleged fraud in obtaining it; and, he wanted an opportunity for his mother, Elizabeth Wilson, to be able to intervene.

[9] I rejected the adjournment request. I was not satisfied that cross-examination was pursued on a timely basis. I was not satisfied that this appeal, or this motion, was the appropriate process for Mr. Wilson to pursue the allegations that the May 2021 Judgment was obtained by fraud. And I was not satisfied that time for participation by Ms. Wilson was a reason for an adjournment. Ms. Lewis appeared on her behalf, confirmed she had not brought any motion to intervene, and further confirmed that she had no instructions to make any submissions.

(2) The Motion to Extend Should be Dismissed

[10] On a motion to extend the time to appeal, the overriding principle is whether the justice of the case warrants an extension. Relevant considerations include whether the party requesting the extension formed an intention to appeal within the relevant time period, the length of and explanation for the delay, prejudice to the responding party arising from the delay, and the merits of the proposed appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.

[11] I accept that Mr. Wilson has demonstrated that he had an early intention to contest the May 2021 Judgment, as he sought to appeal it, and that he has a continuing intention to challenge the judgment as demonstrated by his motion under r. 59.06 and his appeal from the dismissal of that motion.

[12] But the justice of the case does not warrant an extension of time for Mr. Wilson to appeal the May 2021 Judgment, given that the May 2021 Judgment was unopposed, and given that the grounds for the proposed appeal are duplicative of the substance of Mr. Wilson’s r. 59.06 motion.

[13] On the first point, it is an important consideration that Mr. Wilson is seeking to extend the time for an appeal that this court will not ordinarily even hear. This court will not typically hear an appeal from an unopposed order because of concerns that it would be contrary to the interests of justice for an appeal to proceed in these circumstances: Lamothe v. Ellis, 2022 ONCA 789. This case falls within that general rule.

[14] The May 2021 Judgment was rendered after a trial in which Mr. Wilson did not participate because an order was made, in September 2018, denying him that participation as a consequence of the contempt finding against him. The September 2018 Order was not successfully appealed. As this court stated in Lamothe, at para. 3: “[p]articipation in an appeal after an uncontested trial has been ordered can circumvent that order, contrary to the interests of justice”. It would allow a party “to engage indirectly in issues that he was denied participation in through an order that he has not appealed”.

[15] There can be circumstances in which this court will grant an exception from its general practice of refusing to entertain an appeal from an unopposed order: see Lamothe, at para. 3; Peerenboom v. Peerenboom, 2020 ONCA 240, 446 D.L.R. (4th) 418, at para. 56. But I do not see any that are arguably present here.

[16] Counsel for Mr. Wilson fairly conceded that the only ground on which the appeal would challenge the May 2021 Judgment is the contention that Ms. Fatahi-Ghandehari obtained it by fraud. But Mr. Wilson’s allegation that the May 2021 Judgment was obtained by fraud was the basis of his r. 59.06 motion. He argues that the appropriate thing for him to do was to follow that procedure: Hilton v. Hilton, 2021 ONCA 29, at paras. 8-11. But it does not follow that, even though that procedure was followed, he can still proceed with this appeal on the very same basis: namely, that the judgment was obtained by fraud.

[17] Unlike in Hilton or any of the cases it references, here a decision was rendered on the r. 59.06 motion, dismissing it, finding it had no merit, and finding that the fraud contentions had been conclusively determined. Mr. Wilson already has an appeal pending from that dismissal. Having pursued that route of litigating his fraud concern, he cannot use a proposed appeal from the May 2021 Judgment to pursue yet another determination of the same issue. A multiplicity of proceedings is contrary to the interests of justice.

[18] Entertaining the proposed appeal would not be in the interests of justice both because it would create a multiplicity of proceedings and would permit continuing proceedings after an uncontested trial. Therefore, the justice of this case does not warrant an extension of time for the appeal to be pursued.

Conclusion

[19] The motion is dismissed, with costs to the responding party fixed in the sum of $2,721.66 inclusive of disbursements and applicable taxes.

“B. Zarnett J.A.”

[1] The Family Law Rules, O. Reg. 114/99, also permit a motion to change an order that was obtained by fraud: r. 25(19) (a).