CITATION: Elnasr v. Mostafa, 2022 ONSC 1735
COURT FILE NO.: DC-20-00000004-0000
DATE: 2022 03 18
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
SHERIF ELNASR
No one appearing, for the
Plaintiff/Respondents
Plaintiff (Respondent)
- and -
SALWA AHMAD MOSTAFA, DALIA ELSAYED and KHALED MORSI
Andrew Ostrom, for the
Defendants/Appellants,
S. Mostafa and D. Elsayed
Defendants (Appellants)
HEARD: September 17, 2021 (by videoconference)
REASONS FOR JUDGEMENT
[On appeal from the Judgement of Deputy Judge P. Kaler
of the Brampton Small Claims Court, dated November 19, 2019]
Kumaranayake J.
[1] The Appellants, Salwa Ahmad Mostafa, and Dalia Elsayed (“Ms. Mostafa” and “Ms. Elsayed” individually, and “Appellants” collectively), appeal the Judgement of Deputy Judge Kaler, dated November 19, 2019 (“the Judgement”).
[2] By that Judgement, Ms. Mostafa and Ms. Elsayed were jointly and severally liable to pay to the Respondent, Sherif Elnasr (“Mr. Elnasr”), the Plaintiff at trial, the sum of $11,250.00. The Deputy Judge dismissed the claim against Khaled Morsi (“Mr. Morsi”). The Deputy Judge also ordered that no costs be awarded to Mr. Elnasr or to Mr. Morsi.
[3] For the reasons that follow, the appeal is granted and a new trial is ordered.
BACKGROUND
Nature of Dispute
[4] Ms. Elsayed and Mr. Morsi are siblings. Ms. Mostafa is their mother.
[5] Ms. Elsayed and Mr. Elnasr met at a restaurant where they both worked.
[6] Mr. Elnasr, Ms. Mostafa, Ms. Elsayed, and Mr. Morsi all have family who live in Egypt.
[7] In July 2017, Ms. Mostafa travelled to Egypt. Prior to her leaving for Egypt, an arrangement was made for Mr. Elnasr to send some money for his relatives in Egypt through Ms. Mostafa. This was agreed to, and the money was given to Ms. Mostafa. However, the money was not given to Mr. Elnasr’s relatives in Egypt.
[8] Mr. Elnasr claimed that he gave the equivalent of $11,250.00 (CDN) to Ms. Mostafa. At trial, he sought recovery of this amount from Ms. Mostafa, Ms. Elsayed, and Mr. Morsi.
Findings of the Deputy Judge
[9] The Deputy Judge heard the trial in this matter over three non-consecutive days between May 17, 2019, and August 22, 2019. At trial, Mr. Elnasr was represented by counsel. However, Ms. Mostafa, Ms. Elsayed, and Mr. Morsi represented themselves. There were three documents that were made trial exhibits.
[10] In his Reasons for Decision, dated November 19, 2019 (“Reasons”), the Deputy Judge summarized the evidence of Mr. Elnasr, Ms. Elsayed, Ms. Mostafa, Mr. Morsi, and a rebuttal witness called by Mr. Elnasr.
[11] In his analysis as set out in his Reasons, the Deputy Judge made the following findings:
(a) There was no dispute that the money was handed to Ms. Mostafa.
(b) When Mr. Elnasr handed the money to Ms. Mostafa, Ms. Elsayed was present, but Mr. Morsi was not present.
(c) Ms. Elnasr was aware of the exact amount of the money given to Ms. Mostafa as Ms. Elnasr counted the money on the way to the airport.
(d) Ms. Mostafa deposited the money that she was given into her bank account in Egypt.
(e) Ms. Elnasr was part of the scheme.
(f) The police in Egypt opened an investigation on August 21, 2021, at 10:20 a.m. but subsequently closed the investigation having found that “the statements of Salwa was not made on truth.”
(g) The bank documents produced by Mr. Elnasr were genuine.
(h) Ms. Mostafa and Ms. Elsayed were unjustly enriched and liable to Mr. Elnasr for the amount of $11,250.00.
GROUNDS OF APPEAL
[12] The Amended Notice of Appeal, dated May 12, 2021, sets out the following six grounds of appeal:
a) The learned Deputy Judge made a palpable and overriding error in finding that the Appellant, Dalia Elsayed, was part of a scheme to appropriate the Respondent’s funds, in the absence of any evidence to support this conclusion;
b) The learned Deputy Judge erred in law in concluding that the Appellant, Dalia Elsayed, was unjustly enriched, notwithstanding his finding of fact that the funds were deposited to an investment held by the Appellant, Salwa Ahmad Mostafa;
c) the learned Deputy Judge made a palpable and overriding error in the interpretation of an Egyptian police report upon which he relied;
d) the learned Deputy Judge erred in law by improperly admitting into evidence, and placing reliance upon, documents which had not been proven through the testimony of their authors, which the Respondent admitted having obtained through bribery, and which did not bear sufficient indicia of reliability;
e) the learned Deputy Judge erred in law by failing to effectively manage the trial and constrain prejudicial and irrelevant testimony by the Respondent;
f) the reasons of the learned Deputy Judge are insufficient to permit meaningful and effective appellate review;
POSITION OF THE PARTIES
[13] The position of the appellants, Ms. Elsayed and Ms. Mostafa, is set out in their Amended Notice of Appeal. The relief requested in their Amended Notice of Appeal is that the Judgement be set aside, and a new trial be ordered.
[14] As noted above, the Deputy Judge dismissed the claim against Mr. Morsi (a Defendant at trial). Mr. Morsi did not participate in this appeal.
[15] The Respondent, Mr. Elnasr (the Plaintiff at trial) also did not participate in the appeal. However, at the outset of the argument, the issue of whether he had notice of the appeal was reviewed and I was satisfied that Mr. Elnasr had notice of the appeal.
[16] First, the Appellants’ motion for an extension of time to appeal was heard by Justice Fragomeni in 2020. Mr. Elnasr was represented by counsel at that motion. By the Endorsement, dated December 14, 2020, Justice Fragomeni granted the motion and extended the time to appeal to January 8, 2021. By his Endorsement, dated January 25, 2021, Justice Fragomeni ordered that Mr. Elnasr pay to the Appellants their costs of the motion in the amount of $2,000.00. These costs were payable within 30 days.
[17] Second, a case management conference was held on May 19, 2021. As indicated in her Endorsement, dated May 20, 2021, Justice Favreau (as she was then) was satisfied that Mr. Elnasr was aware of this appeal, although he did not participate in the case management conference.
[18] Counsel for the Appellants advised that the appeal materials had been prepared but not served, as there was no email address for Mr. Elnasr.
[19] By that Endorsement, Justice Favreau gave the following directions with respect to this appeal:
(a) By no later than May 28, 2021, the appellants are to serve their appeal materials on Mr. Elnasr by sending them to his last know mailing address. The materials are to include a copy of this endorsement;
(b) Mr. Elnasr is to contact Mr. Ostrom to provide his current email address and telephone number by no later than June 15, 2021;
(c) Mr. Elnasr is to serve his responding materials on Mr. Ostrom electronically or by regular mail by no later than July 12, 2021;
(d) After June 15, 2021, Mr. Ostrom is permitted to contact the Divisional Court Office in Brampton to obtain a hearing date before a single judge of the Divisional Court and to obtain filing instructions. If Mr. Ostrom hears from Mr. Elnasr by June 15, 2021 in accordance with subparagraph (c) above, Mr. Elnasr is to be consulted about the appeal hearing date. If Mr. Elnasr does not contact Mr. Ostrom, the hearing date can be set unilaterally without consulting Mr. Elnasr for any date after July 31, 2021 when the Court and Mr. Ostrom are available; and
(e) If Mr. Elnasr does not respond to the appeal, it will be up to the judge hearing the appeal to decide how to proceed.
[20] On May 21, 2021, Mr. Elnasr was served, by regular lettermail, with the Appeal Book and Compendium, Exhibit, Book, Factum of the Appellants, and the endorsement of Justice Favreau, dated May 20, 2021, at the last address for service provided by Mr. Elnasr. Proof of service was filed. Counsel for the Appellants advised that these documents were returned to his office.
[21] However, a second address for Mr. Elnasr was obtained and on June 2, 2021, Mr. Nasr was served with the appeal documents by regular lettermail. Proof of service was filed. Counsel advised that these were not returned to his office. Service was effective as of June 9, 2021 (see Rules 3.01 and 16.06 of the Rules of Civil Procedure).
[22] Counsel for the Appellants also advised that the day before the hearing of the appeal, he attempted to contact Mr. Elnasr by telephone. The first number that he had was out of service. A message was left at the second number. Counsel advised that an individual who identified himself as a friend of Mr. Elnasr returned his call and stated that Mr. Elnasr was out of the country. Counsel was unable to obtain an email address for Mr. Elnasr.
[23] Having been satisfied that Mr. Elnasr had notice of the appeal and had been served with the appeal documents, the appeal proceeded.
JURISDICTION
[24] An appeal from a final order of the Small Claims Court lies to a single judge of the Divisional Court where the amount is in excess of $2,500. The amount claimed in this matter is $11,250.00. Therefore, I have jurisdiction to hear this appeal: see s. 31 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[25] On an appeal, the appellate court has the following powers, as set out in s. 134(1) of the Courts of Justice Act:
Unless otherwise provided, a court to which an appeal is taken may,
(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from;
(b) order a new trial;
(c) make any other order or decision that is considered just.
STANDARD OF REVIEW
[26] The standard of review for an error of fact is that the error made must be overriding and palpable. The standard of review for an error of law is correctness. There is a spectrum for the standard of review on an error of mixed fact and law. (See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, and 28).
(i) Sufficiency of Reasons
[27] In determining the issues on this appeal, the starting point, in my view, is with the last enumerated ground of appeal, the sufficiency of the Deputy Judge’s Reasons.
[28] In assessing the sufficiency of the Deputy Judge’s Reasons, I acknowledge the tremendous volume of matters in the Small Claims Court as well as the informal nature of the Small Claims Court. As stated in Maple Ridge Community Management Ltd. v. Peel Condominium Corp. No. 231, 2015 ONCA 520, 389 DLR (4th) 711, at paras. 34 and 35:
[34] The Small Claims Court is mandated under s. 25 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to “hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.” The Small Claims Court plays a vital role in the administration of justice in the province by ensuring meaningful and cost effective access to justice for cases involving relatively modest claims for damages. In order to meet its mandate, the Small Claims Court’s process and procedures are designed to ensure that it can handle a large volume of cases in an efficient and economical manner.
[35] Reasons from the Small Claims Court must be sufficiently clear to permit judicial review on appeal. They must explain to the litigants what has been decided and why: Doerr v. Sterling Paralegal, 2014 ONSC 2335, at paras. 17-19. However, appellate consideration of Small Claims Court reasons must recognize the informal nature of that court, as well as the volume of cases it handles and its statutory mandate to deal with these cases efficiently. In short, in assessing the adequacy of the reasons, context matters: Massoudinia v. Volfson, 2013 ONCA 29, at para. 9. Just as oral reasons will not necessarily be as detailed as written reasons, reasons from the Small Claims Court will not always be as thorough as those in Superior Court decisions. Failing to take the Small Claims Court context into account only serves to restrict access to justice by unnecessarily imparting formality and delay into a legal process that is designed to be informal and efficient.
[29] Or, in other words, to permit meaningful appellate review, the reasons must adequately express “what” was decided and “why” it was decided, see: Maple Ridge, at para. 24; Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, at para. 61.
[30] If the reasons are not sufficiently detailed to understand “the what” and “the why” for the decision under review, then this is an error in law and the standard of review is correctness, see Maple Ridge, at para 22; Barbieri v. Mastronardi, 2014 ONCA 416, at para. 22.
[31] The Deputy Judge’s Reasons are eight pages (single spaced). The majority of his reasons consist of his summary of the evidence of Mr. Elnasr, Ms. Elsayed, Ms. Mostafa, Mr. Morsi, and a rebuttal witness called by Mr. Elnasr (six pages). His analysis was captured in five paragraphs that took approximately one-half page.
[32] In my view, the Deputy Judge’s Reasons are not sufficient to permit a meaningful review of his decision. To be clear, it is not the length of the reasons that gives rise to this error in law. From a review of his Reasons, it is evident what was decided. The error in law arises because “the why” is not evident. I adopt the reasons of Justice Molloy in Baptiste v. Obermuller, 2010 ONSC 6274 (also a Small Claim Court appeal to the Divisional Court), at para. 13:
At a minimum, the reasons for a decision must be sufficient for the parties to understand the basis for it and to allow for meaningful appellate review. Where there are contradictions in the evidence, including where the judge’s decision is based on findings of credibility, the reasons should address the conflict and explain why one version was chosen over the other. Bald assertions and generalizations are not sufficient for this purpose. [footnotes omitted]
[33] As I explain below, the absence of “the why” in the Deputy Judge’s Reasons permeates into three of the grounds of appeal and, in the absence of a clear analysis as to why some evidence was accepted and other evidence was not, deference cannot be given to his factual findings (see Barbieri, at para. 23). Therefore, his decision must be set aside and a new trial ordered.
(ii) Liability of Ms. Elsayed
[34] The Deputy Judge came to the following conclusions with respect to Ms. Elsayed. First, that she was present when Mr. Elnasr handed the money to Ms. Mostafa. Second, Ms. Elsayed counted the money on the way to the airport and therefore she was aware of the exact amount given by Mr. Elnasr. Third, Ms. Elsayed was part of the scheme. Fourth, as part of his overall conclusion, that Ms. Elsayed had been unjustly enriched and was, therefore, liable, either with her mother or alone, to pay $11,250.00 to Mr. Elnasr.
[35] The Deputy Judge’s Reasons do not explain how or why he reached these conclusions with respect to Ms. Elsayed. There was contradictory evidence given in the trial, but the Reasons do not explain the basis upon which the competing evidence on significant aspects was resolved in Mr. Elnasr’s favour.
[36] Here are some examples of the competing evidence (this list is not meant to be exhaustive):
(a) Mr. Elnasr asserted that Ms. Elsayed agreed that her mother would take the money for him to Egypt, but Ms. Elsayed testified that she did not have discussions about this with Mr. Elnasr and that she did not make a promise on her mother’s behalf that Ms. Mostafa would take the money for Mr. Elnasr.
(b) Mr. Elnasr asserted that Ms. Elsayed and Mr. Morsi were both present when he gave the money to Ms. Mostafa. Ms. Elsayed testified that she was not present as she was at work and Mr. Morsi testified that he was in Sarnia at that time. Ms. Mostafa testified that neither of her children were with her when Mr. Elnasr handed over the money.
(c) Mr. Elsayed and his rebuttal witness maintained that Ms. Elsayed knew how much money was given to Ms. Mostafa as Ms. Elsayed counted it as she and Ms. Mostafa were driven to the airport. Ms. Elsayed testified that she did not see the money, did not know where her mother kept the money, and she did not count the money.
(d) Mr. Elnasr testified that he did not learn about the purported robbery for approximately three weeks after Ms. Mostafa’s arrival in Egypt. He also testified that Ms. Elsayed provided incorrect police report numbers and told him that her mother had been hospitalized in Egypt when his information was that she was not in hospital. Ms. Elsayed and Mr. Morsi testified that Ms. Elsayed informed Mr. Elnasr about the robbery and her mother’s hospitalization after she learned about it on August 2, 2017. Further, Ms. Elsayed testified that she had provided the police report number to Mr. Elnasr.
(e) Mr. Elnasr testified that, prior to July 2017, he had, on two different occasions, taken things to Egypt for Ms. Elsayed and Ms. Mostafa. He also asserted that he bought things for Ms. Elsayed and that she shared personal information with him. Ms. Elsayed testified that she had never asked him to take anything to Egypt for her, they were not friends and she had not shared personal information with him.
[37] As the Reasons did not include the Deputy Judge’s analysis with respect to the credibility and reliability of the witnesses or why competing evidence was resolved in Mr. Elnasr’s favour, a meaningful review of his Reasons is not possible.
(iii) Bank statements
[38] In the trial, Mr. Elnasr tendered a bank statement (in Arabic) with a certified English translation. This was Exhibit 2 in the trial. The Deputy Judge came to the following conclusions. First, that Ms. Mostafa deposited the money that she was given into her bank account in Egypt. Second, the bank documents produced by Mr. Elnasr were genuine.
[39] There was only one bank document that was made an exhibit at trial (Exhibit 2). Mr. Elnasr relied on this document as proof that the money that he gave Ms. Mostafa was deposited into her certificate account in the National Bank.
[40] The Reasons of the Deputy Judge do not explain why he found the bank document to be genuine or why he found that Ms. Mostafa deposited the money into her account. The Appellants raised two concerns.
[41] First, the Appellants submit that there was non-compliance with Rule 18.02 of the Rules of the Small Claims Court. Second, the Appellants submit the bank document was not authenticated through the evidence at trial.
[42] There are two relevant provisions to be considered that relate to the first concern. These are in the Courts of Justice Act and the Rules of the Small Claims Court. Section 27 of the Courts of Justice Act states that:
Evidence
27 (1) Subject to subsections (3) and (4), the Small Claims Court may admit as evidence at a hearing and act upon any oral testimony and any document or other thing so long as the evidence is relevant to the subject-matter of the proceeding, but the court may exclude anything unduly repetitious.
Same
(2) Subsection (1) applies whether or not the evidence is given or proven under oath or affirmation or admissible as evidence in any other court.
Same
(3) Nothing is admissible in evidence at a hearing,
(a) that would be inadmissible by reason of any privilege under the law of evidence; or
(b) that is inadmissible by any Act.
Conflicts
(4) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.
Copies
(5) A copy of a document or any other thing may be admitted as evidence at a hearing if the presiding judge is satisfied as to its authenticity.
[43] Rule 18.02 of the Rules of the Small Claims Court provides that
Written Statements, Documents and Records
18.02 (1) A document or written statement or an audio or visual record that has been served, at least 30 days before the trial date, on all parties who were served with the notice of trial, shall be received in evidence, unless the trial judge orders otherwise.
(2) Subrule (1) applies to the following written statements and documents:
The signed written statement of any witness, including the written report of an expert, to the extent that the statement relates to facts and opinions to which the witness would be permitted to testify in person.
Any other document, including but not limited to a hospital record or medical report made in the course of care and treatment, a financial record, a receipt, a bill, documentary evidence of loss of income or property damage, and a repair estimate.
Details about Witness or Author
(3) A party who serves on another party a written statement or document described in subrule (2) shall append to or include in the statement or document,
(a) the name, telephone number and address for service of the witness or author; and
(b) if the witness or author is to give expert evidence, a summary of his or her qualifications.
(4) A party who has been served with a written statement or document described in subrule (2) and wishes to cross-examine the witness or author may summon him or her as a witness under subrule 18.03 (1).
Where Witness or Author is Summoned
(5) A party who serves a summons to witness on a witness or author referred to in subrule (3) shall, at the time the summons is served, serve a copy of the summons on every other party.
(6) Service of a summons and the payment or tender of attendance money under this rule may be proved by affidavit (Form 8A).
Adjournment
(7) A party who is not served with a copy of the summons in accordance with subrule (5) may request an adjournment of the trial, with costs.
[44] The Appellants acknowledge that these provisions permit the admission of hearsay evidence (see Fakhoury v. Gurguis, 2013 54527 (ON SCSM), at paras. 4-5). However, they submit that the requirements of the Rule 18.02 were not met and that it was an error in law for the Deputy Judge to admit the bank document, particularly in light of how the document was obtained. I agree.
[45] The document that was tendered as a copy of a financial document to purportedly confirm the existence of a certificate account at The National Bank of Egypt, that this certificate account was in Ms. Mostafa’s name, the date that the certificate was issued (August 1, 2017), the amount (150,000 Egyptian pounds), the interest rate (15% annually), the term (5 years), and maturity date. The document was written in Arabic and an English translation was filed.
[46] Rule 18.02 can apply to financial documents. However, from a review of the Exhibit 2, it does not appear that Rule 18.2(3) was complied with. There was no statement of the name, telephone number, and address for service of the witness/author of the document. Therefore, I cannot conclude that the Appellants were provided with the necessary information to summons a witness for cross-examination on the document.
[47] Even if the name of the witness had been provided, consideration would also have to be given as to the ability of the Appellants to secure the witness’ attendance for cross-examination. The costs associated with compelling a witness from Egypt may have been prohibitive or disproportionate (see Fakhoury, para. 7). The ability or inability of the Appellants to cross-examine the necessary witness should have been considered when determining whether the document should have been admitted (see MBK Services v. PowerForward Inc., 2013 ONSC 4506, at paras. 32-34). From the Reasons, I cannot determine if consideration was given to this issue.
[48] Mr. Elnasr’s testimony included admissions about how he obtained the document. The relevant excerpts of his evidence are reproduced below.
[49] In his examination-in-chief, Mr. Elnasr testified that he made inquiries with a former co-worker at the bank to find out if Ms. Mostafa had accounts at the bank:
Transcript, May 17, 2019, page 28 (line 28) to page 29 (line 4):
A. No, no. I just want to show something here. Okay. So when I talk with my ex-co-worker in Egypt, it was on August 2017 about Salwa Ahmad Mostafa, if she has accounts. He told me Salma Ahmad Mostafa, she just opened accounts on August 1st, 2017. And as well, she transferred money – exchanged money from American dollars, hundred bills, to Egyptian pounds. She put the certificates with 150,000 Egyptian pounds, with 15 interest annual. She has a friend with her or like one of her family went with her. His name is Hisham Mohamed Faraq (ph) …
Transcript, May 17, 2019, page 30 (line 26) to page 31 (line 14):
A. Yeah. So they realized that she convert the money from American dollars; it was hundred dollars, because in their system they write down the currency being used and the currency rates – like, $100 , whatever – so she know all the money was U. S . dollars', all hundred-dollars' rates. So when I get this information, I ask my friend to give me the certificates or any information more. He gave me the certificate, but as he realized, it doesn’t write any cell (ph) number on the certificate because just in case, if she decide to go to the bank and sue the bank, he cannot present the certificate with the cell number.
So he gave me the certificate and he delete the cell number from the certificate.
CLERK REGISTRAR: Sir, are you saying “cell number?”
A. Serial number.
MR. KHAN: “Serial,” I think he means “serial number.”
CLERK REGISTRAR: Serial number.
MR. KHAN: Q. Serial number?
A. Serial number, yeah.
[50] Through his cross-examination and reply evidence, Mr. Elnasr also admitted that he used bribery and his power in government to obtain information, that this could be considered a criminal act, that he did not use proper channels, and that the serial number was removed to prevent tracing:
Transcript May 17, 2019, page 82 (line 24) to page 83 (line 1):
MR. MORSI: Q. Okay. You also said you obtained – you obtained all the evidence from Egypt. Like all the information about my mom's bank account, my mom's lands and property she owns in Egypt.
A. Yes.
Q. You obtained all this information . . .
A. Yes.
Q. …by bribing people in Egypt and by using your power within the government.
A. Of course.
Transcript, May 17, 2019, page 97 (lines 1 to 26):
MS. MOSTAFA: Q. Who gave you the right to look into my account? Because in Egypt, this could be a criminal act.
A. That' s correct. But I have to do anything to confirm where this money come, going through…
Transcript, August 22, 2019, page 263 (lines 11 to 17):
A. There’s many things here. First of all, about the certificate. I got the certificate from someone, he worked in the bank there. I didn’t do the certificate, he sent it to me by mail, he sent me the copy. And he doesn’t give me a cell [sic] number for the certificate as I said last time, because as I said, he doesn’t want them to go through and this through the bank right?...
[51] Ms. Elsayed and Ms. Mostafa maintained that this document was a forgery.
[52] In my view, in keeping with his gatekeeping function, the manner in which Mr. Elnasr obtained the document ought to have raised concerns for the Deputy Judge (see Prohaska v. Howe, 2016 ONSC 48, paras. 29 and 54; and Sutherland Estate v. MacDonald, [1999] O.J. No. 785 (Ont. C.J. (Gen. Div.), at para. 13). It may very well have; however, whether it did cannot be determined from his Reasons. Further, if it did raise concerns for the Deputy Judge, it cannot be determined how those concerns were overcome or addressed.
[53] Again, the Reasons do not provide “the why” to explain the basis upon which the Deputy Judge found the bank document to be genuine or provide any analysis of the credibility and reliability of the competing evidence of Mr. Elnasr on one hand and of Ms. Elsayed and Ms. Mostafa on the other hand. This is particularly important given Mr. Elnasr’s admissions regarding how he surreptitiously obtained the document. Therefore, a meaningful review of his Reasons cannot take place. This error in law also supports a new trial being ordered.
(iv) Police report
[54] A police report was made Exhibit 3 in the trial. In his Reasons, the Deputy Judge stated that in concluding that the money was deposited in Ms. Mostafa’s bank account and that Ms. Elsayed was part of the scheme, he
In particular I rely upon the following part of the police report made by Alexandria, Egypt police which states that investigation was opened on August 21, 2017 at 10:20 a.m., and on finding that the statements of Salwa was not made on truth the investigation was closed.
[55] The Appellants raise two concerns with respect to this police report.
[56] First, Exhibit 3 was a document written in Arabic and there was no English translation filed. Second, during the trial, the document was translated by the Interpreter and there were two different variations provided. Third, neither translation was consistent with the Deputy Judge’s finding as to what the police report said. I agree.
[57] From a review of Exhibit 3, it does not appear that there was compliance with Rule 18.02. The identity, telephone number, and address for service of the author of the document or the witness has not been included with the document. (The document appears to have been tendered by Ms. Mostafa).
[58] The Reasons of the Deputy Judge do not articulate why he found the document to be a police report that could be relied upon.
[59] After the document was made an exhibit, the Deputy Judge asked the Interpreter to read it to him. In translating the document, the Interpreter gave two different versions:
Transcript, August 22, 2019, page 216 (line 4) to page 217 (line 19):
THE COURT: Okay. That's fine. Can you give that document to Madam Clerk.
EXHIBIT NUMBER 3: Egyptian police report – produced and marked.
MS. MOSTAFA A. Your Honour, the [indiscernible] that I forget everything; I forget the dates, I forget the ....
THE COURT: Thank you. This is in Arabic. So, Mr. Interpreter, can you just read it for me? Or for the record?
INTERPRETER: [As Read: ]
The department of security of police of Alexandria; the division – internal police division, investigation unit; the unit, or the report statement was opened on the 21st, 8, 2017, at 10:20 a.m. in the morning. And with our knowledge as [Your Honour, there is a name – the first name is not so clear to the Interpreter, but the second one is Ahmed (ph) , possibly Aysham (ph).] I took the following – [there is, under the – Your Honour, under the time, there is the investigation associate or assistant.] After reviewing the decision of the general attorney in the minute, Number 23785 for the year 2017 [it's handwritten, Your Honour, not clear here to the Interpreter.]
THE COURT: That' s fine, if you cannot read anything, just skip it and tell me the rest.
INTERPRETER: Okay:
... about the investigation – investigating, investigations about the incident and it is circumstances, we give the affidavit that the investigation does not reach to the truth of the incident. And that's our opinion based on it.
THE COURT: Okay.
INTERPRETER: "And the minute was closed at the hour and date after presenting what was – after presenting the minute and all the document."
THE COURT: Did it say they closed the investigation?
INTERPRETER: Yes, it says – they meant the word "minute" in order of investigation, Your Honour, it was closed. [emphasis added]
[60] Then, Mr. Elnasr’s lawyer sought clarification and a portion of the document was re-stated:
Transcript, August 22, 2019, page 217 (line 20) to page 218 (line 21):
MR. KHAN: But Your Honour, I did not catch the word when he said this was not based on truth, what was the exact words?
INTERPRETER: The word "mahma" (ph) means "minute" or " statement"; it was closed. Based on that, at that time – at its time and its date.
MR. KHAN: There is a word or two, Mr. Interpreter, Your Honour, I just misunderstood the last sentence. Can you please repeat.
INTERPRETER: [As Read:]
After reviewing the decision of the attorney general and the Minute Number 23785 for the year 2017, [one word is not legible, Your Honour] about the investigation surrounding the incidents and its circumstances, we declare that the investigation did not reach the truthful, the truth of the incidents. And that’s what we confirmed. [And the minute was closed based on that, at its hour and its date, after proving what was presented; and the original minute was attached. And it is displayed.]
THE COURT: Okay. So, what ...
INTERPRETER: And then signature.
THE COURT: ... yeah, so Mr. Khan, I do not know. It seems like it was closed on August 21st, but it does not say that it was made on August 21st. But anyway, I'll let you explore that. Okay, that's fine. Thank you, Mr. Interpreter.
MR. KHAN: Your Honour, we don' t have a copy.
THE COURT: During the break, we can request Madam Clerk to do that. [emphasis added]
[61] The first time, the Interpreter stated, “the investigation did not reach the truthful, the truth of the incidents.” The second time, the Interpreter stated, “the investigation did not reach the truthful, the truth of the incidents.” Neither version, however, refers to any statement of Ms. Mostafa.
[62] Further, neither version, as translated by the Interpreter, is consistent with the Deputy Judge’s conclusion that the police report stated, “the statements of Salwa was not made on truth.” Both versions seem to support a finding that the investigation was inconclusive.
[63] The error in relation to the police report is two-fold. The first component is the Deputy Judge’s interpretation of the document and second is the lack of explanation how he arrived at his conclusion.
[64] In my view, the Deputy Judge misapprehended the evidence regarding the police report. This is a palpable and overriding error. Palpable refers to the error being obvious, plain to see, or clear whereas overriding refers to the effect on the outcome of the decision (see: Housen; Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 O.A.C. 201, at paras. 296-297; and 250 Front Street West Inc. v. DCT5 Inc., 2018 ONSC 1159, at para. 3).
[65] It is plain and obvious that the Deputy Judge’s interpretation of what the police report stated is not supported by either variation of the translation provided by the Interpreter. The impact of this error is overriding as it goes to root of his findings that money was deposited in Ms. Mostafa’s account as well as his finding that Ms. Elsayed was part of the scheme.
[66] As previously discussed, it is an error in law for the Reasons not to explain “the why.” Here, the Deputy Judge’s rationale to “in particular” rely on the police report in arriving at his conclusion that both Ms. Mostafa and Ms. Elnasr were unjustly enriched is not articulated.
[67] These errors compounded with the other identified errors require that a new trial be ordered. In light of this conclusion, it is not necessary to consider the other grounds of appeal.
DISPOSITION
[68] The appeal is granted.
[69] The Judgement of Deputy Judge Kaler, dated November 19, 2019, is set aside and a new trial is ordered.
[70] Counsel for the Appellants shall serve the Respondent, Sherif Elnasr, with a copy of this decision, dated March 18, 2022, by email (if an email address is known) or by regular lettermail at the last known address for service for the Respondent Sherif Elnasr and then shall file proof of service.
[71] Counsel for the Appellants shall serve Khaled Morsi with a copy of this decision, dated March 18, 2022, by email (if an email address is known) or by regular lettermail at the last known address for service for Khaled Morsi and then shall file proof of service.
[72] Costs of the appeal shall be determined in writing. The Appellants’ written submissions, bill of costs, and any authorities relied upon shall be delivered by April 7, 2022. These written submissions shall be not more than three pages, double-spaced and in 12-point font. The Appellants’ materials for costs shall be filed by email to my judicial assistant sherry.mchady@ontario.ca.
Kumaranayake J.
Released: March 18, 2022
CITATION: Elnasr v. Mostafa, 2022 ONSC 1735
COURT FILE NO.: DC-20-00000004-0000
DATE: 2022 03 18
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
SHERIF ELNASR
Plaintiff (Respondent)
- and -
SALWA AHMAD MOSTAFA, DALIA ELSAYED and KHALED MORSI
Defendants (Appellants)
REASONS FOR JUDGMENT
[On appeal from the Judgment of Deputy Judge P. Kaler of the Brampton Small Claims Court, dated November 19, 2019]
Kumaranayake J.
Released: March 18, 2022