ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-104211-00
DATE: 20130222

BETWEEN:

Solmaz Vazifehkhah Ghaffari

Plaintiff

– and –

Vahid Mehdizadeh Asiyaban, Elham Moaveni, also known as Ellie Moaveni and Alan J. Luftspring

Defendants

Bita Maftoun, for the Plaintiff

Christopher J. Thiesenhausen, for the Defendant, Vahid Asiyaban

Michael R. Kestenberg and David S. Lipkus, for the Defendants, Elham Moaveni and Alan Luftspring

HEARD: November 26, 2012

REASONS FOR DECISION

EDWARDS j.:

[1] In reasons released on January 16, 2013, I dismissed the plaintiff’s action as against the defendants Elham Moaveni (“Moaveni”) and Alan Luftspring. The defendant Vahid Mehdizadeh Asiyaban (“Vahid”) has also moved for summary judgment.

The Facts

[2] The defendant, Vahid, is of Iranian descent having immigrated to Canada in 2001. Sometime in 2002, he met Bijan Ghaffari and became friends with him and his family, including his daughter, the plaintiff Solmaz Ghaffari (“Solmaz”).

[3] In September 2005, Vahid decided that he wanted to purchase a residence, but owing to the fact that he did not have a Canadian credit history, despite the fact that he had saved sufficient money for a down payment, he could not qualify on his own for a mortgage. He therefore discussed with Bijan Ghaffari his predicament and Solmaz agreed to assist him in a purchase of a residence by co-signing a mortgage. With the assistance of Solmaz, Vahid purchased 69 Highland Park Boulevard in Markham, Ontario.

[4] While it is disputed by Solmaz, Vahid maintains that he paid all of the costs associated with the residence, including the mortgage, insurance, municipal taxes, and utility costs, as well as any renovation expenses associated with the residence.

[5] When the residence was purchased, Vahid and Solmaz attended at the law office of the defendant Alan Luftspring. Later as events unfolded, Solmaz indicated to Vahid that she no longer wanted to be bothered with building permits or signing of renewals of the mortgage and, as such, on February 21, 2006, Vahid and Solmaz again attended at the law office of Alan Luftspring where a trust agreement and power of attorney prepared by Mr. Luftspring were signed by Solmaz. The effect of the documents, being a trust agreement and power of attorney, was to confirm that Solmaz did not have any beneficial interest in the residence so that she would no longer have to execute any additional documentation in connection with the residence.

[6] On both occasions, when Solmaz attended at Mr. Luftspring’s office, she was advised to obtain independent legal advice and chose not to do so.

[7] On April 9, 2009, as previously reviewed in my earlier reasons of January 16, 2013, a letter was sent by Gary Shapiro on behalf of Solmaz to Mr. Luftspring asserting that the power of attorney and trust agreement were improper. Effectively, Solmaz was asserting that she had an interest in the residence.

[8] As a result of the correspondence from Mr. Shapiro, Vahid then retained the defendant Moaveni to prepare an application record seeking a declaration of whether the trust agreement and power of attorney were valid. On November 5, 2009, Howden J. ordered that the trust agreement and power of attorney were valid.

[9] As I indicated in my reasons of January 16, 2013, prior to the hearing of the summary judgment motion, I dealt with a motion brought by Solmaz which sought to attack the validity of the order made by Howden J. The basis upon which the attack on the validity of the order was made was one based on the suggestion that the motion materials before Howden J. had never been served. I directed a trial of an issue with respect to whether or not the motion materials had in fact been served and after hearing evidence from Moaveni, Solmaz, and other witnesses, I denied the plaintiff’s motion with the result being that the order of Howden J. still stands.

[10] If the plaintiff had an interest in the residence, that interest arose as a result of the trust agreement executed by Solmaz and Vahid in February 2006. As of April 9, 2009 when Solmaz met with Mr. Shapiro, it is evident that as of that date, she intended to revoke the power of attorney and call into question the validity of the trust agreement. As reviewed in my earlier reasons, if this court determines that the limitation period commenced on April 9, 2009 then the limitation period expired by the time the statement of claim was issued on May 16, 2011. Solmaz argues that the limitation period had not begun to run as she did not have the mental capacity to appreciate that she had a potential claim as against Vahid or any of the other defendants.

[11] As I reviewed in my earlier reasons, Solmaz placed before this court some evidence with respect to the state of her mental capacity, which amounted to the clinical notes and records of a Dr. Azadian who would appear to have seen the plaintiff in connection with a dog bite injury which occurred on May 13, 2008.

[12] As I indicated in my earlier reasons, the clinical notes and records as well as the consultation note of Dr. Azadian in no way complied with the requirements in a summary judgment motion to place before the court expert evidence in a form that conforms with the Rules and the Evidence Act. For the same reasons expressed in my reasons of January 16, 2013, I am not satisfied that the plaintiff has put her best foot forward in putting evidence before this court that would satisfy me that she did not have the appropriate mental capacity as of April 2009 to appreciate that she had a potential claim as against Vahid. As such, the limitation period began to run when the plaintiff knew, or ought to have known, of a potential claim, and as I have already expressed, there can be no doubt that when the plaintiff met with Mr. Shapiro in April 2009, she would have had an appreciation of the potential for a claim against Vahid, if she was taking the position that the trust agreement and power of attorney were not valid. The statement of claim was not issued until May 16, 2011 and as such the plaintiff’s claim as against Vahid is statute-barred. The motion of the defendant Vahid is granted. If the parties cannot agree upon costs, written submissions limited to three pages in length shall be submitted to the trial co-ordinator within two weeks from the date of receipt of these reasons. If written submissions are not received within that time frame then this court will assume that the parties have agreed on costs and no further involvement of this court is required.

Justice M.L. Edwards

Released: February 22, 2013