ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
COURT FILE NO.: 03-CL-5217
DATE: 20120627
B E T W E E N:
Ghareeb Awad
Applicant
- and -
Dover Investments Limited and Robert Salna
Respondents
COUNSEL:
• Ghareeb Awad, self-represented
• Harold Maltz for the Respondents
HEARING DATE: June 6, 2012
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[ 1 ] For nine years now, Dr. Ghareeb Awad, who is a geologist, and Transpacific Petroleum Corp., his family’s corporation, have been engaged in pan-Canadian litigation with law suits in Ontario, Alberta, and British Columbia against Dover Investments Limited and Robert Salna and sometimes Dover Petroleum Limited. The litigation is about two petroleum joint venture projects in Egypt, and the dispute has been about whether Dr. Awad has received less – or more ‑ than what he is entitled to for having been in business with Mr. Salna and Dover Investments and Dover Petroleum.
[ 2 ] In Ontario, the litigation began in 2003 with an application by Dr. Awad for an oppression remedy under s. 245 (a) and s. 248 of the Business Corporations Act , R.S.O. 1990, c. B-16. There was, however, already an action underway in British Columbia brought by Mr. Salna and Dover Investments. Later Dover Petroleum, another Salna corporation, would become involved in the British Columbia litigation.
[ 3 ] In Ontario, by 2006, Justice Spence had made an original decision (the “ORD”), two supplemental decisions (the “SRD” and the “SSRD”) and several procedural file directions. (Many more directions were to follow.) Justice Spence’s decisions, which were affirmed by the Divisional Court, held that there had been oppression but the remedies for it should be quantified by a reference to a Master.
[ 4 ] Unfortunately, the reference has been postponed to await the outcome of the action in British Columbia and also an action in Alberta, which was commenced not by Dr. Awad, but by Mr. Salna and his corporations. Dr. Awad responded to these actions with counterclaims.
[ 5 ] The Alberta action made its way to the Alberta Court of Appeal, and the action in British Columbia made its way to the British Columbia Court of Appeal and then to a failed application for leave to appeal to the Supreme Court of Canada.
[ 6 ] With the litigation in Alberta and British Columbia approaching an end, the matter continued in Ontario in 2011, where by orders made in May and September 2011, Justice Spence provided directions for the reference to the Master. Dr. Awad, however, regarded Justice Spence’s directions as unjust and inconsistent with the original oppression remedy order.
[ 7 ] Frustrated in his efforts to appeal Justice Spence’s directions, which were ruled to be interlocutory orders requiring leave to appeal, Dr. Awad served a notice of abandonment of his oppression application. However, he immediately commenced a new application on behalf of Transpacific.
[ 8 ] Practically speaking, Dr. Awad wants to undo nine years of litigation and start afresh with a new application by his family corporation, which he manages and controls. The new application is based on a 2005 assignment from Dr. Awad to Transpacific that was either not mentioned or denied up until recently in the pan-Canadian litigation. Mr. Salna and Dover Investments challenge the assignment as a fraudulent conveyance in yet more litigation between the parties.
[ 9 ] For their part, Mr. Salna and Dover Investments wish to complete the original oppression remedy proceeding by completing the reference. They bring two motions before the Court. These Reasons for Decision are to decide those two motions.
[ 10 ] In the first motion, Mr. Salna and Dover Investments seek to have Transpacific added as a party to the reference, and they seek carriage of the reference. They ask for an order that they be named plaintiffs and that Dr. Awad and Transpacific be the defendants in the trial of the issues set out in Justice Spence’s orders of May 26, 2011 and September 13, 2011. They also ask that except with leave of the Court, Dr. Awad be barred from any motions or appeals against Dover Investments or Mr. Salna.
[ 11 ] In the second motion, Mr. Salna and Dover Investments move for an order dismissing Transpacific’s new application on the grounds of abuse of process or res judicata, and they seek an order declaring Dr. Awad to be a vexatious litigant under s. 140 of the Courts of Justice Act , R.S.O. 1990, c. C.43.
[ 12 ] For the reasons that follow, I am not declaring Dr. Awad a vexatious litigant. I am, however, disallowing his notice of abandonment. I shall add Transpacific as a party to the original application, which means that Transpacific’s entitlements, if any, can be determined as part of the reference.
[ 13 ] I am also adding Dover Petroleum as a necessary party to the reference procedure.
[ 14 ] I will make procedural orders for the purpose of facilitating the completion of the reference before the Master. These orders will provide for the disclosure of documents and be modelled on the taking of accounts procedure used in estates matters in the Superior Court where a litigant must disclose its assets, revenues, and expenses and on the procedure used in expropriations cases where a person receives an appraisal as a part of the arbitration procedure for determining the compensation for the taking of property or assets. These procedural orders will make it unnecessary to change who has carriage of the reference before the Master.
[ 15 ] I direct that after these two motions, there be no further motions for directions by any party and that the Master assume the management of the reference procedure.
[ 16 ] It is a colossal understatement to say that the pan-Canadian litigation between Dr. Awad and Mr. Salna has involved a multiplicity of proceedings. The problems that have led to so much litigation seem to have begun with Mr. Salna’s maneuver of submitting the new evidence that led Justice Spence to write his supplemental reasons for decision (the “SRD”), which, in turn, led to Dr. Awad’s similar maneuver that led Justice Spence to write his second supplemental reasons for decision (the “SSRD”). Mr. Salna and his corporations also had made effective tactical moves in more than one jurisdiction. The usually self-represented Dr. Awad’s numerous interlocutory moves have been much less successful.
[ 17 ] Mr. Salna and Dover Investments blame the anathema of a multiplicity of proceedings on Dr. Awad, but as the review of the history of the litigation will reveal, it seems to me that both parties are to blame for a litigation drama that approaches the theatre of the absurd. All parties and the courts across the country have reason to be exasperated by the delay and multiplicity of proceedings. But enough is enough, and it is time to complete the reference to the Master.
[ 18 ] In the course of my reasons, it will become apparent why Dr. Awad is mistaken about Justice Spence’s recent orders being inconsistent with the original oppression remedy order. Although I have no appellate jurisdiction, practically speaking, Dr. Awad will have received the judicial review that he sought of Justice Spence’s recent orders. The procedural orders that I shall make will address Dr. Awad’s legitimate concerns.
[ 19 ] I also point out to Dr. Awad that the reference still affords him and his corporation Transpacific access to justice for his or its claims. If Dr. Awad is correct that he and Transpacific have not got what they deserve, he and it still have an opportunity to prove it with the fair qualification that a party or its privy cannot re-litigate issues after they have had their day in court.
... (case text continues exactly as provided) ...
Perell, J.
Released: June 27, 2012
COURT FILE NO.: 03-CL-5217
DATE: 20120627
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Ghareeb Awad
Plaintiff
‑ and ‑
Dover Investments Limited and Robert Salna
Defendants
REASONS FOR DECISION
Perell, J.
Released: June 27, 2012.