SUPERIOR COURT OF JUSTICE – ONTARIO
DATE: 20121101
DOCKET: FS-08-344363
RE: Amir Ali Baradaran Aghaei, Applicant
AND:
Zore Ghods, Respondent
BEFORE: Czutrin J.
COUNSEL:
Stephen J. Codas , for the Applicant
Deborah MacKenzie , for the Respondent, Zore Ghods
R. Coroiu , for the Respondent, Saeid Aghaei
HEARD: October 30, 2012
ENDORSEMENT
[ 1 ] All counsel and parties consent to me hearing this motion.
[ 2 ] The Respondent, Zore Ghods, seeks to examine Original Minute Book of “808”---corporation plus the original as filed Corporate Tax Returns of “808”.
[ 3 ] The latest of the Tax Returns produced (copies) were received last week.
[ 4 ] This case is scheduled for trial to commence the week of November 12, 2012, having been previously adjourned at the request of the Applicant, but opposed by the Respondent.
[ 5 ] When I granted the adjournment of the trial last November 7, 2011, I did so with certain terms including:
“808” valuation should be completed by January 31, 2012.
Motions regarding disclosures and undertakings (to be heard) in February 2012.
$7,500 costs to be paid by the Applicant, (as he was seeking the adjournment).
I sought to target a trial to commence November 13, 2012.
[ 6 ] At that time I asked the parties to agree to a timetable for any further motions (including date by which no further motions may be permitted without leave), exchange of expert reports and anything else related to trial readiness.
[ 7 ] The “808” valuation report was served on Mr. Ghods’ counsel on January 31, 2012.
[ 8 ] When counsel last appeared before me on October 12, 2012, I endorsed that since I would be away, any leave requests may be brought before another judge in my absence.
[ 9 ] No motion was brought until I returned.
[ 10 ] The Respondent, Ms. Ghods, seeks leave to bring this motion and asks for the production of the Original Minute Book of 808 for forensic document examination; directing the Applicant and his father, who is also a party in a mortgage action to be tried with the family action, to forthwith produce all Corporate Tax Returns for “808”.
[ 11 ] While the Respondent submits that there have been efforts to stonewall disclosure sought by her, no motions for this disclosure have been brought in nearly a year since the trial adjournment opposed by the Respondent.
[ 12 ] The allegation concerning the Applicant’s true interests in “808” has been a live issue dating back to the commencement of this action in 2008.
[ 13 ] The requests now made all relate to that issue.
[ 14 ] Respondent’s counsel has examined the Original Minute Book prior to last fall’s adjourned trial date and copies have been provided.
[ 15 ] The relief to have an expert examine the Minute Book could have and should have been made months ago. No expert is identified, and no proposed process by and expert is provided including the time needed and anticipated. The Rules cannot be complied with relating to such expert given the set for trial date.
[ 16 ] I am advised that the accountant who prepared the Corporate Tax Returns is on the Applicant’s witness list.
[ 17 ] The trial judge would allow the Respondent to look at the accountant’s files, including original and true copies of returns as listed as part of the accountant’s examination.
[ 18 ] I was advised that Mr. Wong, who now acts for Mr. Saeid Aghaei, may have prepared the corporate documentation and Minute Book giving effect to the change of shareholders now being challenged. Mr. Wong may be a witness and he needs to address this forthwith, as this trial will not be adjourned and no one is seeking an adjournment.
[ 19 ] Counsel and parties to cooperate to do as follows: (so that time may be saved at trial)
i. One-half day to be arranged, for a date no later than November 9, 2012, at Mr. Codas’ office to allow examination of the Minute Book by counsel and one other person to be previously identified by the Respondent’s counsel.( not a party and not a non expert witness).
ii. At the same time, the accountant is to be available with his original documentation regarding “808” Corporate Returns dating back to when the Applicant held 98% of “808” and for each year since. The original documents may be inspected and copied, but shall remain the possession of the accountant and ad the Minute Book in Applicant’s counsel’s office.
iii. The accountant to be advised that original and true copies of what was e-filed or filed otherwise to CRA are to be made available for inspection.
iv. Each party and each shareholder of “808” may have one designated agent attend.
[ 20 ] I make this order in an effort not to delay or prolong the trial by having a review of files at the court while the trial is proceeding.
[ 21 ] The Applicant is entitled to costs of $5,000. Since monies are held, it need not be paid forthwith but may be deducted from the next payment due to Ms. Ghods.
Czutrin J.
Released : November 1, 2012