Matin v. Pakjo, 2012 ONSC 54

CITATION : Matin v. Pakjo, 2012 ONSC 54

COURT FILE NO.: 04CV27945CM3
DATE: 20120103

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ben Matin, Plaintiff

AND:

Yusof Pakjo and Nasrin Mohammadzadeh, Defendants

BEFORE: Matlow, J.

COUNSEL: Brian Shiller, Counsel, for the Plaintiff

The defendant, Mohammadzadeh, appears in person

The defendant, Pakjo, does not appear

HEARD: December 6, 2011 at Toronto

ENDORSEMENT

1The defendant, Mohammadzadeh (“defendant”), appeared before me on a motion without counsel seeking an order for the payment out of court of an unspecified sum which appears to be approximately $30,000 which had been paid into court pursuant to an order of a Master. This sum was composed of the surplus proceeds of the sale, by the plaintiff, of a condominium property owned by the defendant which was mortgaged to the plaintiff. It appears that, when the mortgage fell into arrears, the plaintiff exercised the power of sale in the mortgage and sold her property.

2It is not clear whether the co-defendant, from whom the defendant is divorced, was served with notice of motion but, as no relief was claimed against him, it is of no consequence.

3Counsel for the plaintiff, however, did appear and, at the outset of the hearing, advised me that the money in issue had already been paid out of court pursuant to the order of a judge and he submitted that this motion should be dismissed as it is now moot. In support of his submission he handed to me a copy of a handwritten endorsement of a judge of this court who apparently presided over the trial of this action and, on November 23, 2009, dismissed this action and ordered that the money in issue be paid out to the plaintiff. The judge’s endorsement also records that, although the defendant did not appear in person at the trial, her solicitor of record did “as her notice to act in person does not appear to have been filed”.

4The defendant, who appeared to be intelligent and articulate, responded with disbelief and stated that she, as opposed to the co-defendant, had never had any dealings with the plaintiff other than in relation to the mortgage and had received no notice of any trial of this action. Moreover, she could think of no reason why the plaintiff should have been found entitled to the surplus proceeds of the sale of her property. No copy of the statement of claim was included in the record before me and I could not tell what the basis of the plaintiff’s claim or entitlement was.

5I then engaged the defendant in a brief conversation. I suggested that she consult a lawyer and seek legal advice about her legal rights, if any, in these circumstances. She responded, as so many self-represented litigants do, that she had sought Legal Aid in the past but had been turned down.

6What, then, is she to do? And what am I to do in these circumstances to dispense justice and still maintain the appearance and substance of judicial neutrality? It appears as if some injustice may have occurred to her and needs to be investigated but it is far from clear who could be called upon to help her.

7Accordingly, I advised the defendant that I would prepare a short endorsement setting out the background of this motion which she might find helpful in her further efforts to obtain Legal Aid and find a lawyer willing to act for her. In the meantime, I will continue to reserve my decision in this motion for a reasonable time while I ponder the second question set out in paragraph 6, above.

Matlow, J.