ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-09-094816-00
DATE: 20121128

BETWEEN:

Vahid Mehdizadeh Asiyaban Applicant – and – Solmaz Vazifehkhah Ghaffari Respondent

Christopher J. Thiesenhausen, for the Applicant
Bita Maftoun, for the Respondent

HEARD: November 19, 2012

REASONS FOR DECISION

EDWARDS j.

[ 1 ] The Respondent seeks to set aside the Order of Howden J. dated November 5, 2009 (the “Order”). The sole basis upon which the Respondent can succeed in her present motion is to establish fraud as no appeal was taken with respect to the Order. The sole basis upon which the Respondent can establish fraud is to establish the Motion materials before Howden J. (the “Motion”) were never served contrary to the affidavit of service filed in support of the Motion.

[ 2 ] Counsel who appeared on the Motion before Howden J. was Elham Moaveni (“Moaveni”). Moaveni asserts in her affidavit of November 15 th that the Respondent was served with the Motion. Moavenis’ affidavit of service, filed on the Motion before Howden J., asserts that the Respondent was served by Moaveni on October 23, 2009. Moaveni further asserts that she mailed a copy of the Notice of Motion to the Respondent at her home address at 62 Hunt Avenue, Apt. 302, Richmond Hill. The mailing of the Notice of Motion became necessary because on the original motion date of October 29, 2009 no judge was available necessitating a new return date.

[ 3 ] It is apparent from of a review of the history of the Motion that the Applicant had experienced problems in serving the motion materials that ultimately resulted in the Order. Moaveni had attempted to serve the Motion on lawyers for the Respondent. These lawyers had, on instructions from the Respondent, declined to accept service. While service was not accomplished, the Respondent was advised by her lawyer that there had been an attempt at service. While the Respondent may not have known the contents of the motion given the lack of service on her lawyer it is defying credibility to believe the Respondent would not have been alerted to the reality of the situation she was facing.

[ 4 ] Given the problems with service, Moaveni brought a motion on July 16, 2009 to obtain an order for sub service on the Respondent. The court declined to grant the sub service order. As of July 16, 2009, Moaveni had attempted to serve the motion on the Respondent’s solicitors. She also had attempted to obtain a sub service order. These actions in of themselves would suggest Moaveni was doing what was needed to be done to properly serve the motion and or bring it to her attention. These actions do not appear to be the actions of a lawyer seeking to avoid her obligations to properly serve the motion.

[ 5 ] After the purported service of the motion, Moaveni received a voice mail on her office voice mail system. The voice mail was transcribed by a member of her staff. There is nothing in the evidence before me to suggest the voice mail was not properly transcribed. In part, the voice mail from the Respondent said:

“I am wishing to defend this action……I will be in Court to prove that you have nothing to show this property is Vahid’s…..I will tell the judge and show this to the judge and he will never get his house back….”

[ 6 ] The Respondent asserts she was never served with the motion materials. Essentially she calls Moaveni a liar. If the Respondent was never served, as asserted by the Respondent, this Court has to ask the question why would the Respondent have called Moaveni and left a voice mail that on its face clearly infers she would be defending the action and that she would be in court. How could the Respondent make that statement if she had not been served by the time of the voicemail?

[ 7 ] Moaveni appeared before Howden J. on November 5, 2009. Before proceeding with the Motion it is clear from the transcript of the proceedings before Howden J. that Moaveni was challenged regarding service. The following dialogue took place between Howden J. and Moaveni:

The Court: I don’t see much merit to it, frankly without it being served….Was it served on the respondent

Moaveni: I’ve sworn an affidavit, Your Honour

The Court: Was it served on the respondent?

Moaveni: Yes, yes

The Court: Okay

Moaveni: And I served it myself

The Court: I see

Moaveni: This is one of these unique circumstances that I actually met with the respondent myself….

[ 8 ] If the Respondent is to be believed, this court must not only conclude that Moaveni swore a false affidavit of service but, that she lied to Howden J. when she appeared before the Court on November 5, 2009. It is hard to conceive that counsel would go to such lengths to deceive the Court where counsel had no personal stake in the litigation.

[ 9 ] The Respondent asserts she was not served. The Respondent has not put any evidence before the Court as to where she says she was on October 23, 2009, the day when Moaveni says she served the Respondent.

[ 10 ] What gives this Court significant cause for concern in terms of the Respondent’s story is information contained in a letter from a lawyer whom the Respondent saw on September 23, 2010. On that date the Respondent saw Stephen Fleury. It is clear from Mr. Fleury’s reporting letter to the Respondent, dated September 26, 2010, that the Respondent was advised by Mr. Fleury that the sole basis upon which the Order of Howden J. could be set aside would be to prove the order was obtained by fraud-the fraud being the lack of service in the face of a false affidavit of service. It is only now that the Respondent seeks to proceed in the fashion she was advised by Mr. Fleury. Her failure to proceed with a motion to set aside the Order of Howden J. in a timely manner seriously calls in to question the Respondent’s credibility. It is only when the Respondent is faced with the summary judgment motion, presently pending, that she has formally raised the issue of service of the motion materials filed before Howden J. I do not accept that the Respondent was not served as deposed to by Moaveni in her affidavit of service. Her voicemail message to Moaveni belies that theory. Moreover the actions of Moaveni in attempting service on the Respondent’s solicitors and her motion for an order for sub service do not reflect the actions of someone who the Respondent now asserts did not serve her. Moaveni is an officer of this Court. She was specifically challenged by Howden J. as to whether the motion had been served. Moavenis’ story on November 5, 2009 is the same story as the one before this Court. I found Moaveni to be a credible witness. I did not find the Respondent credible. She at no time gave any evidence as to where she says she was when the purported service by Moaveni took place. Her story is a simple denial of service. For reasons I have given, I do not accept that Respondent was not served with the motion materials that were placed before Howden J. I unreservedly accept that story. The motion before Howden J. was properly served. The Order of Howden J. stands.

Justice M.L. Edwards

Released: November 28, 2012