CITATION: 2565090 Ontario Inc. v. Bakhshi, 2025 ONSC 6281

DIVISIONAL COURT FILE NO.: 349/25 and 418/25 DATE: 20251023

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: 2565090 Ontario Inc., Vahid Shomalaa Hoseyni, Ahmad Idrees Rahmani, 256778 Ontario Ltd., Appellants/Moving Party AND: Hoshang Bakhshi, Respondent

BEFORE: ACJ McWatt, Justices Sachs and McKelvey

COUNSEL: Vahid Shomalaa Hoseyni, Ahmad Idrees Rahmani, Self-Represented Siddharth S. Joshi and W.E. Weston Powell, Counsel for the Respondent

HEARD at Toronto: October 23, 2025

Ruling re admission of evidence

Sachs J. (orally)

[1] This is an appeal from the decision of Schabas, J. dated April 22, 2025. On this appeal, both Appellants seek to file affidavits that were not before the Application Judge.

[2] The Respondent has objected to the admission of this evidence on the appeal.

[3] For the following reasons, we find that the evidence should not be admitted.

[4] The Appellant, Mr. Hoseyni, did file material before the Application Judge, some of which is included in the material he now seeks to file before us. However, the Application Judge decided that "as [Mr. Hoseyni's] evidence was filed unfairly and far too late to test, it should be given no weight other than to the extent it assists in fixing damages based on admissions.".

[5] Mr. Hoseyni did not assert in his Notice of Appeal or in his factum that the Application Judge erred when he refused to consider his evidence.

[6] For us to consider the evidence in the absence of a finding of an error by the Application Judge in this regard would be to undermine the decision of the Application Judge by allowing Mr. Hoseyni to do before us what the Application Judge decided he could not do before him.

[7] To the extent that the evidence filed in this appeal by Mr. Hoseyni contains evidence that Mr. Hoseyni never sought to put before the Application Judge, Mr. Hoseyni has not brought a motion to admit this evidence as fresh evidence. As a result, there is nothing before us to satisfy us that the evidence meets the test for the admission of fresh evidence as set out by the Supreme Court of Canada in Palmer v. Queen, 1979 8, which the Supreme Court confirmed in Bent v. Plotnick, 2020 SCC 23 at para. 50. Specifically, this test provides that fresh evidence on an appeal should generally not be admitted if by due diligence it could have been put before the judge whose decision is being appealed.

[8] The Appellant, Mr. Rahmani, appeared before the Application Judge but filed no material on the application in spite of the fact that he was directed to do so by September 13, 2024, in the endorsement of Morgan J. of August 12, 2024.

[9] In his endorsement, the Application Judge, at para. 10 noted that Mr. Rahmani attended the virtual hearing before him and "said he did not understand the legal procedure and was not in a position to submit any documents or evidence. He asserted he was a silent partner and did not have anything to do with the financial records. However, he acknowledged he was aware of the litigation since its inception and was aware of the Order of Morgan J. He did not take a position at the hearing today."

[10] Ultimately, the Application Judge decided that the matter should proceed. He did so both because no request for an adjournment was made before him by either Mr. Hoseyni or Mr. Rahmani and because to grant the adjournment would cause prejudice to Mr. Bakhshi, the Respondent on this appeal.

[11] Mr. Rahmani has not challenged the Application Judge's decision to proceed without any material from him. As such, to allow him to file material on the appeal that was not before the Application Judge would be to undermine the decision of the Application Judge and would be unfair and prejudicial to the Respondent.

[12] Mr. Rahmani has not brought a motion before us to file fresh evidence and has produced no evidence before us to establish why he could not, with the exercise of due diligence, have put this evidence before the Application Judge.

[13] Therefore, we are not prepared to consider the affidavits filed by either Appellant on the hearing of this Appeal.

ACJ McWatt J.

Sachs J.

McKelvey J.

Released: