COURT FILE NO.: 10-48640 and 10-48640A1

MOTION HEARD: December 17, 2013

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Raika Zahran, Plaintiff

AND:

Emman Zahran Ben-Jamil and Zeki Al-Ebadi, Defendants

AND:

Ashraf Zahran, Third Party

BEFORE: Master Pierre E. Roger

COUNSEL:
Mario Mannarino, Counsel for the Plaintiff/Responding Party

Khalid M. Elgazzar, Counsel for the Defendant/Moving Party Emman Zahran Ben-Jamil

HEARD: December 17, 2013

REASONS FOR DECISION

[1] This motion is brought by the defendant, Emman Zahran Ben-Jamil (hereinafter, “the defendant”). It has been served on the plaintiff and on the defendant Al-Ebadi. Mr. Al-Ebadi did not file any materials on this motion and did not attend.

[2] The defendant Al-Ebadi has not defended this action. He has not been noted in default and, on this motion, it is not clear whether or not he was ever served with the statement of claim. Similarly, the third party has not defended the third party claim but he has been noted in default. The third party was also served with this motion but did not appear or file materials.

[3] The plaintiff is: the mother of the defendant, the former spouse of the defendant Al-Ebadi (who is the step father of the defendant) and, as well, she is mother of the third party.

[4] This action involves an ongoing family dispute between the parties over an Ottawa taxi plate number 711.

[5] The issue of the ownership of the taxi plate has been decided by Justice Kershman in a judgment dated March 13, 2009, in action number 03-CV-024987. He held that the ownership is as follows:

a. Zeki Al-Ebadi (step father of the defendant): 23.45%

b. Raika Zahran (mother of the defendant): 23.45%

c. Emman Zahran Ben-Jamil: 53.40%

[6] The decision of Justice Kershman was appealed, in part, to the Ontario Court of Appeal. In its endorsement, released on March 31, 2010, the Ontario Court of Appeal indicates that the appellant (the plaintiff in this action) no longer challenges the ownership determination made by the trial judge but challenges the sale of the taxi plate ordered by the trial judge. The court agreed with the appellant and set aside paragraph 5 of the judgment of Kershman J. Since that decision, the plaintiff has purchased the interest in the taxi plate of Zeki Al-Ebadi. The plaintiff then started this action seeking to purchase the defendant’s ownership in the taxi plate.

[7] The statement of claim in this action was issued by notice of action on June 2, 2010. The statement of defence of the defendant is dated November 4, 2010. The defendant alleges that this action is an abuse of process as the ownership issue has previously been decided. She also argues that the current value of the plate has previously been decided. A reply is dated November 15, 2010 and a third-party claim was issued on November 17, 2010. It does not appear that much else has happened to date in this matter.

[8] A mediation session is currently scheduled for February 19, 2014, starting at 10 am. A pre-trial conference is presently scheduled for May 16, 2014 at 2 pm. This action was recently set down for trial by the plaintiff.

[9] A motion for interim possession of the taxi plate was brought by the defendant and heard by Master MacLeod on February 22, 2011. Master MacLeod made an order dated the same day. The moving party alleges that the order of February 22, 2011, has been repeatedly breached by the plaintiff and seeks possession of the plate and other relief.

[10] The following is ordered:

a. This action has a long complicated history and it is hereby ordered into case management to be case managed to ensure that it proceeds to trial expeditiously.

b. The plaintiff shall, by December 31, 2013, advise this court and the defendant whether or not the defendant Al-Ebadi has been served with the statement of claim. Notice to this court shall be provided by letter to my attention delivered to my office, together with any affidavit of service, copied on opposing counsel. If that defendant has been served, he shall forthwith be noted in default by the plaintiff and leave is hereby provided to the plaintiff for that purpose. If that defendant has not been served then the plaintiff shall schedule a case conference before me at the earliest possible date but to be at the same time as the case conference ordered at (k) (iii). This case conference is to be scheduled for a date after January 20, 2014 or at a time at least 20 days after the defendant Al-Ebadi has been served by the defendant in order for the defendant Al-Ebadi to be present if he delivers a defence to the counterclaim.

c. The mediation session scheduled for 10:00 am on February 19, 2014, at the offices of Barnes Sammon LLP, 400-200 Elgin Street, Ottawa is, subject to any further order of this court, peremptory on the parties to this motion who shall both exchange a mediation brief and attend this mandatory mediation session. If the defendant Al-Ebadi delivers a defence to counterclaim then he shall as well deliver a mediation brief and attend this mediation session.

d. Paragraph 1 of the amended notice of motion is dismissed. It is noted that the order of this court dated February 22, 2011 is in force and is to be respected and complied with in a timely manner pending any further order of this court.

e. Paragraph 2 of the amended notice of motion is dismissed.

f. Paragraph 3 of the amended notice of motion is dismissed.

g. Paragraph 4 of the amended notice of motion seeking to amend the statement of defence to add a counterclaim is granted. The defendant Ben-Jamil may amend her statement of defence to add a counterclaim in the format attached to her amended notice of motion and she shall forthwith do so and forthwith serve the amended defence and counterclaim on both the plaintiff and defendant Al-Ebadi.

h. Paragraph 4.1 of the amended notice of motion is granted and such is hereby ordered.

i. A copy of this endorsement and order is to be served by the defendant on the defendant Al-Ebadi together with the amended defence and counterclaim.

j. The consent and approval as to form and content of the Defendant Al-Ebadi is not required for purposes of entering this order.

k. From a timetable perspective, relating to case management issues, the following is also ordered:

i) The plaintiff shall deliver any defence to counterclaim within the next 20 days, the defendant Al-Ebadi shall deliver any defence to the counterclaim within 20 days from the date of service and the defendant may deliver any reply within 10 days of receipt;

ii) Both parties to this motion are to serve an up to date and sworn affidavit of documents (the plaintiff has not yet delivered one) disclosing all relevant documents to issues of liability and damages by no later than January 31, 2014. If the defendant Al-Ebadi delivers a defence to counterclaim he shall serve his sworn affidavit of documents disclosing all relevant documents by February 14, 2014;

iii) If the defendant Al-Ebadi delivers a defence to counterclaim then the parties shall forthwith schedule a case conference before me for the earliest available date to be at the same time as the case conference ordered above at (b) but the defendant Al-Ebadi shall comply with this order pending the case conference;

iv) Both parties to this motion may have one hour of examination for discovery of the other on any issue relevant to the pleadings with any such examination to be conducted by no later than March 28, 2014. If the defendant Al-Ebadi delivers a defence to counterclaim then the parties may on consent schedule any examination for discovery involving that party or this may be addressed at a case conference but in any event, all examinations for discovery are to be completed by March 28, 2014.

v) The pre-trial date scheduled is peremptory on the parties and that date may not be adjourned without a prior order of this court. The Plaintiff shall deliver her pre-trial brief at least seven days before the pre-trial and the defendants at least five days before the pre-trial and all briefs shall incorporate all required information including lists of witnesses and outstanding steps;

vi) The defendant shall within the next 30 days set the undefended third party action down for trial and this undefended third party action shall be tried at the same time as this action.

vii) One of the goals of this court on this motion is to take steps to ensure that this matter is brought to trial for a final resolution and, consequently, a trial date is hereby scheduled in both this action and the undefended third party action for 3 to 5 days before a judge alone with the trial to start on September 22, 2014. Any issue about this upcoming trial is to be dealt with at the pre-trial or by either party requesting a case conference. Subject to any further order of this court, this trial date is peremptory on the parties who shall take all necessary steps to ensure readiness for trial.

h) Costs of this motion are to be in the cause but are hereby fixed in the amount of $5,000.00, inclusive of fees, disbursements and HST, if costs are allowed on a partial indemnity basis and at $7,000.00 if costs are allowed on a substantial indemnity basis.

[11] The evidence presented on this motion by the moving party relating to breaches of the order of Master MacLeod by the plaintiff is in part dated and is disputed by the plaintiff. The defaults in timely payment of the rental amounts appear on the evidence to have been remedied by the plaintiff. The plaintiff is to ensure that all such payments, until further order of this court, are paid in a timely manner. The evidence relating to failures to keep the defendant informed about the taxi plate is disputed by the plaintiff and, in any event at this point and on the evidence presented on this motion, is best left to be dealt with at the upcoming trial of this action. The same holds true for any failure to comply with licensing requirements. This motion is not brought as a motion for summary judgment and the issue of the market rate for the rental of the taxi plate should be left to the trial of this action. The order of Master MacLeod is in place and it provides sufficient security to the defendant up until the trial of this action. In any event, as indicated above, at this stage and on the evidence presented what is required is not an additional temporary order but rather a final resolution. The dispute between these parties must be resolved on a final basis and this requires a trial.

[12] Issues relating to setting this action down for trial have been dealt with on consent and the action has now been set down for trial.

[13] A mediation session is a mandatory step and it is not the practice of this court to deal with the costs of the mandatory mediation session on an interim basis. The costs associated with the mediation are, like other required steps in the action, in the cause to be dealt with by the trial judge. I see no reason to make an exception in this matter on the evidence presented.

[14] The amendments sought are allowed. I have reflected on this issue and the order allowing these amendments is not to be on a without prejudice basis to the plaintiff raising a limitation defence at trial.

[15] Rule 26.01 of the Rules of Civil Procedure makes granting leave to amend a pleading mandatory at any stage of an action subject to the court being satisfied that prejudice would not result that could not be compensated for by costs or an adjournment. Pleading a new cause of action after the expiry of a limitation period gives rise to a presumption of prejudice.

[16] In this case, the statement of claim seeks a declaration that the plaintiff is entitled to purchase the defendants’ shares in the taxi plate, an order to determine the value of the taxi plate for the purpose of said purchase, an order for the payment of the rental payments due to the plaintiff, interest and, alternatively, damages in the amount of $200,000. The statement of defence disputes in the above. The draft amended statement of defence seeks to add a counterclaim seeking a declaration that the defendant is entitled to possession of the taxi plate, a declaration that, in accepting a transfer of the defendant Al-Ebadi’s interest in the taxi plate, the plaintiff has accepted responsibility for liabilities associated with said ownership and, an order requiring the plaintiff to pay rental payments owing to the defendant pursuant to the judgment of Kershman J.

[17] I have concluded that the amendments do not plead a new cause of action. Alternatively, they are not prescribed by virtue of paragraphs 16 (1) (a) and (b) of the Limitations Act, 2002.

[18] A cause of action is the factual situation which entitles a party to seek a civil remedy from another party. As was indicated in Bazkur v. Coore et al., [2002] O.J. No. 2654, “A new cause of action is not asserted if the amendments simply plead an alternative claim for relief arising out of the same facts previously pleaded… or amount simply to a different legal conclusion… or simply provide particulars of an allegation already pled or additional facts upon which the original right of action is based”. The amendments sought do not add new facts. These amendments rely on the material facts already pleaded and simply claim relief arising out of these same facts. They do not raise a new cause of action. Alternatively, if I’m wrong regarding the above finding then, section 16 of the Limitations Act, 2002, is applicable. As a result, there is no evidence of prejudice resulting from the proposed amendments and these are allowed.

[19] Rule 77 allows this action to be case managed. Such an order may be made on the court’s initiative (rule 77.05 (2)). This action fits the criteria at rule 77.05 (4).

[20] Additional discovery is allowed at this late stage on the basis of the amendments and this is allowed on all issues as it would be impracticable for the parties to examine only on the amendments. The allowed time is limited to ensure that any examination at this late stage is a focused exercise.

[21] I have decided that the fairest disposition of costs for this motion is to order that costs of this motion be in the cause. The evidence indicates that the plaintiff has not always complied with orders of this Court in a timely manner. Consequently, despite the very reasonable offers of the plaintiff to dispose of this motion, the plaintiff’s success, in part, on this motion and the plaintiff obtaining a result comparable or better than her offers, it would not be appropriate to make the order of costs sought by the plaintiff. It is not that the amount sought by the plaintiff is not reasonable, it is. Rather, although the evidence indicates that the plaintiff remedied the arrears of rent she nonetheless has not always paid in a timely manner and has not always provided the requested information to the defendant. It was necessary for the defendant to bring this motion. Having considered the factors at rule 57 and the submissions of counsel, costs of this motion are to be in the cause but are hereby fixed in the amount of $5000.00 if costs are allowed on a partial indemnity basis and at $7,000.00 if costs are allowed on a substantial indemnity basis. These are reasonable amounts considering the costs outline of each party and certainly amounts within their contemplation of what the unsuccessful party might be ordered to pay.

Master Pierre E. Roger

Date: December 18, 2013