Court File and Parties

Court of Appeal for Ontario Date: 20230202 Docket: COA-22-CV-0205

Paciocco, Sossin and Favreau JJ.A.

Between

Sara Fatahi-Ghandehari Applicant (Respondent)

and

Stewart Wilson Respondent (Appellant)

Counsel: Stewart Wilson, acting in person Jerald J.D. MacKenzie, for the respondent

Heard: in writing

On appeal from the order of Justice William M. LeMay of the Superior Court of Justice, dated August 19, 2022, with reasons reported at 2022 ONSC 4799.

Reasons for Decision

Overview

[1] The respondent in the proposed appeal, Ms. Fatahi-Ghandehari, made a written request pursuant to r. 2.1.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for the summary dismissal of appeal COA-22-CV-0205, brought by the respondent, Stewart Wilson. Rule 2.1.01(1) authorizes this court to dismiss, on a summary basis, an appeal that appears on its face to be frivolous, vexatious or otherwise an abuse of the process of the court: Bell v. Fishka, 2022 ONCA 683, [2022] O.J. No. 440, at paras. 2-3. Following receipt and consideration of the written request to this court, the Registrar provided notice to the parties that the court was considering dismissing the appeal pursuant to r. 2.1 and solicited written submissions on the matter in accordance with the procedures outlined under r. 2.1.01(3).

[2] For the following reasons we are satisfied that on its face this appeal is frivolous, vexatious or otherwise an abuse of process. We would allow Ms. Fatahi‑Ghandehari’s request and summarily dismiss this appeal.

Background Facts and Analysis

[3] The appeal that is the subject of this r. 2.1.01(1) application arises in the context of long-standing, acrimonious litigation between the parties conducted over more then seven years. We have been provided with 30 prior family, commercial and bankruptcy decisions relating to this conflict, including 4 prior unsuccessful attempted appeals by Mr. Wilson to this court. In order to move the matter along, three successive case management judges have been appointed, but the litigation has continued to languish.

[4] Mr. Wilson has been found on more than one occasion to have been responsible for the wasteful litigation that has occurred. In a prior appeal decision, 2018 ONCA 728, this court found that “the record amply shows that the appellant [Mr. Wilson] has made a procedural morass of this case”. In the trial decision that is the subject of the r. 59 application decision that is under appeal, the trial judge, who had also acted as the case management judge, found that “Mr. Wilson has continued to bring motions and advance arguments that seem to serve little purpose other than to complicate and delay this proceeding.” A review of the record confirms the accuracy and fairness of this finding.

[5] Mr. Wilson has also deliberately and wilfully breached court orders, including orders for disclosure, resulting in a finding against Mr. Wilson for contempt on October 10, 2017 (reported at 2017 ONSC 6034), and the striking of his pleadings in the family law matter on September 21, 2018 (reported at 2018 ONSC 5579). The family law action thus proceeded as an undefended trial after the trial judge found that Mr. Wilson’s right to appeal either the finding of contempt or the sentence had been exhausted: 2021 ONSC 3547, at paras. 19-24, aff’d 2022 ONCA 421.

[6] Mr. Wilson has also failed to pay multiple costs orders against him totalling well over $150,000, leaving aside the family law trial costs of approximately $25,000.

[7] Mr. Wilson also has a history of relitigating issues such as the validity of a marriage contract and the refusal of Ms. Fatahi-Ghandehari to answer questions about her alleged “fraudulent” behaviour that have been held to be irrelevant in the proceedings where they were asked. Indeed, despite the trial judge quoting from an earlier judicial decision that Ms. Fatahi-Ghandehari did not have to answer the questions asked because they were irrelevant to the proceedings, Mr. Wilson again claims in support of his written response to this r. 2.1.01 application that Ms. Fatahi-Ghandehari refuses to answer questions about the alleged frauds.

[8] He has also re-raised issues in overlapping actions. The marriage contract provides an example. It has been raised and disposed of in the family litigation but raised again in related civil litigation. In addition, on May 26, 2021, the case management judge issued an order that “all parties are reminded that no proceeding in respect of the issues in this [family] litigation may be brought before any other judge of this Court”. Yet in March 2022 Mr. Wilson commenced a civil lawsuit alleging that Ms. Fatahi-Ghandehari and her lawyer had brought complaints against Mr. Wilson’s lawyer to the Law Society of Ontario (“LSO”) as a “litigation strategy” in the family law proceedings, but only the LSO was named as a defendant, not Ms. Fatahi-Ghandehari or her lawyer. The case management judge noted that the “overlap in the issues between Mr. Wilson’s claim against the LSO and the issues in his various proceedings against Ms. Fatahi-Ghandehari [was] significant.”

[9] He has also made informal allegations of judicial bias against two judges, and a fraud allegation against Ms. Fatahi-Ghandehari’s lawyer. This type of conduct is a potential hallmark of a vexatious litigant.

[10] In Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 20, this court adopted a list of other common characteristics typically found in vexatious litigants contained in Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7, at paras. 14-15, which include:

• bringing multiple proceedings to try to re-determine already determined issues
• rolling forward grounds and issues from prior proceedings
• persistent pursuit of unsuccessful appeals
• failure to pay costs awards
• bringing proceedings for a purpose other than the assertion of legitimate rights[...]

[11] These characteristics are on ready display by Mr. Wilson in the litigation he is waging with Ms. Fatahi-Ghandehari, providing a context within which the request for summary dismissal of the current appeal can be assessed.

[12] With that background in mind, we turn to the instant appeal. The appeal is from an August 19, 2022 decision dismissing Mr. Wilson’s r. 59.06(2) motion. The motion was brought to set aside the judgment on the undefended trial based on allegations that Ms. Fatahi-Ghandehari had obtained the judgment by fraud. The same judge heard the trial and the motion to set aside the judgment. The trial judge summarily dismissed the r. 59.06(2) motion as an abuse of process for four reasons:

1. Many if not all of the same facts and arguments that were advanced in the r. 59 motion to ground Mr. Wilson’s fraud allegations had previously been advanced and were rejected by Price J., including in a January 11, 2018, decision where Price J. rejected an earlier r. 59 motion that Mr. Wilson brought to set aside the contempt finding against him on the basis of the same alleged behaviour.
2. The party seeking to set aside a decision based on fraud must show that the fraud was unknown at the time of the hearing or could not have been put forward with the exercise of due diligence: Saggi v. Grilone, 2021 ONSC 2276. Virtually all of the material allegations of fraud were known to Mr. Wilson at the time of the undefended trial, as he had repeatedly raised these allegations in earlier proceedings.
3. The family law trial that led to the decision that Mr. Wilson was seeking to set aside in the r. 59 motion was undefended because Mr. Wilson’s pleadings had been struck. As the trial judge noted, “It would be an abuse of process and bring the administration of justice into disrepute to allow Mr. Wilson to avoid the consequences of his contempt and be allowed to litigate the issues in the family law proceedings [through the r. 59 motion] merely by claiming the existence of a fraud.”
4. For the foregoing reasons, the r. 59 motion had no prospect of success.

[13] It is plain on a review of the record that it would be an abuse of the court’s proceedings to permit this appeal to continue. Not only has the essential factual basis for this appeal been rejected in prior proceedings such that it would be abusive to permit these issues to be relitigated, it is apparent that the fraud allegations Mr. Wilson relies upon were not unknown to him at the time of trial. Had he exercised due diligence by making the disclosure he was ordered to make, Mr. Wilson could have avoided the contempt findings and presented his allegations of fraud during the trial.

[14] Relatedly, through the r. 59 motion that Mr. Wilson is now seeking to appeal, he is attempting to participate indirectly in a trial that he was not permitted to participate in as the result of his pleadings being struck. As this court held in Lamothe v. Ellis, 2022 ONCA 789, at para. 3:

[t]his court will not typically hear an appeal by a party from an unopposed proceeding. Participation in an appeal after an uncontested trial has been ordered can circumvent that order, contrary to the interest of justice. [Citations omitted.]

[15] The extent to which this appeal is an attempt to participate in the underlying litigation indirectly is evident in Mr. Wilson’s written response to the r. 2.1.01 notice. In attempting to demonstrate the merits of the appeal, Mr. Wilson relies on extensive factual claims that were not part of the record at the undefended trial. He is attempting to reargue the trial before us, which is not our function.

[16] Moreover, although he did not successfully appeal the contempt finding, Mr. Wilson continues to assert in his written response to the r. 2.1.01 proceeding that he made all of the disclosure he was ordered to make.

[17] We are satisfied that to permit this appeal to proceed would be an abuse of the court’s process. This is one of the clearest of cases for invoking this court’s authority to summarily dismiss the appeal as an abuse of process pursuant to r. 2.1.01(1).

Conclusion

[18] The appeal is dismissed.

David M. Paciocco J.A.

L. Sossin J.A.

L. Favreau J.A.