Court File and Parties

COURT FILE NO.: CV-16-553061 and 01-CV-208426 DATE: 20160719 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Randy Misir, Applicant – AND – Rajendra Narine, also known as Hardial Singh, Respondent

AND RE: Randy Misir, Plaintiff – AND – Geree Misir and Rajendra Narine (also known as Hardial Singh), Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: A. Chima, for the Applicant/Plaintiff L. Daly, for the Respondent/Defendants

HEARD: July 15, 2016

Endorsement

[1] Although there are two different file numbers in this matter, they raise one and the same issue: whether to set aside the judgment of Brown J. (as he then was) dated September 8, 2008. The Defendants in 01-CV-208426 and Respondent in CV-16-553061 (“Defendants”) move to set aside that judgment, while the Plaintiff in 01-CV-208426 and Applicant CV-16-553061 (“Plaintiff”) applies to enforce that judgment.

[2] The Plaintiff and the Defendant, Geree Misir, were married for a short time. Ms. Misir apparently left the Plaintiff for the Defendant, Mr. Narine (Singh), and there has been bad blood between them ever since. Shortly after the breakup of the Misirs’ marriage, the Defendants started playing a series of dirty tricks on the Plaintiff – some of these tricks were foolish (such as ordering unwanted pizzas to the Plaintiff’s home) and some were malicious (such as making false complaint to the police leading to criminal charges against the Plaintiff). In one such episode, Ms. Misir had Mr. Misir charge with assault and with threatening her with a knife, only to have these charges brought to trial in the Ontario Court of Justice and dismissed by the trial judge.

[3] The Statement of Claim was issued on April 3, 2001. It seeks damages for the series of wrongful acts perpetrated by the Defendants.

[4] The Defendants never responded to the claim, and eventually the Plaintiff moved for default judgment. Judgment was granted by Wilkins J. on October 29, 2001 following an undefended trial. Justice Wilkins assessed damages at $85,984.00.

[5] Several years later, in 2004, the Defendants moved to set aside the judgment. They contended that they were never served with the Statement of Claim. That motion was heard by Swinton J., who granted the relief sought by the Defendants on June 4, 2004.

[6] Counsel for the Plaintiff has drawn my attention to the fact that the Defendants’ assertion before Justice Swinton that they were out of the country at the relevant time and so the Statement of Claim could not have been served on them, has been proven false. Swinton J. may not have been advised of this, but Ms. Misir was convicted of a criminal offense in respect of her falsification of the dates relevant to this matter. The Plaintiff has produced a copy of an article in the Guyana Chronicle dated April 8, 2002 in which it is reported that on March 23, 2002, Ms. Misir pleaded guilty in a Guyanese court of falsifying an exit stamp on her Guyanese passport to make it appear that she was in Guyana at a time when she was not in fact in that country.

[7] In any case, Swinton J. ordered that the Statement of Defense be served by June 30, 2004. The Statement of Defense was apparently produced, but not properly served on the Plaintiff as the address to which it was mailed was incomplete. However, the Defendants managed to file the Statement of Defense with the court since it was not clear on the face of the affidavit of service that there was anything wrong with the mailing address. I should point out that the affidavit of service also stated that the Statement of Defense was sent by fax to the Plaintiff, but this, too, was not received and the affidavit was accompanied by no fax confirmation sheet as is the common practice.

[8] Since the Plaintiff never received the Statement of Defense, he eventually moved to reinstate Justice Wilkins’ judgment. That relief was granted by Brown J. on September 8, 2008, who ordered the judgment of Wilkins J. restored nunc pro tunc. He also ordered costs payable in respect of the previous motions in the total amount of $11,000 ($7,500 for the Wilkins J. motion and $3,500 for the Swinton J. motion).

[9] Justice Brown specifically noted that the deadline set by Swinton J. for the Statement of Defense was missed, although the court filing record does show that the pleading was filed on June 28, 2004. According to Justice Brown’s endorsement, at the hearing he was advised by the Plaintiff that no Statement of Defense was ever served. That, of course, is understandable given the fact that the address on the Statement of Defense was missing the suite number for the Plaintiff and the municipal address alone would not have been sufficient to get it to him.

[10] In the meantime, the Defendants started engaging in what appear to be a series of fraudulent conveyances of their property. The Plaintiff has produced a parcel registry for a property in Scarborough, Ontario in which a property owned by the Defendant, Mr. Narine (Singh), is shown has having been conveyed away by in 2005. The property then changed hands several times before it is ultimately conveyed back to Mr. Narine (Singh) in 2006, presumably when he thought the coast was clear, as counsel for the Plaintiff put it.

[11] The Defendants now state that this past year they wanted to put a mortgage on their property and were surprised to find that the Plaintiff had filed executions against them relating to the judgment of Wilkins J. as reinstated by Brown J. At that point they decided to bring the present motion to set aside Justice Brown’s judgment. The motion was first brought as a Master’s motion, but Master Short adjourned it to be heard by a judge.

[12] The Plaintiff alleges that the Defendants have played more of their games in bringing the present motion to court. In the record is a sworn affidavit by the Plaintiff, Mr. Misir, stating that although he was purportedly served with the Defendants’ motion record, in fact the envelope that he received contained 8 pages of irrelevant newspaper articles. This suggests that the affidavit of service relating to this bogus package was what was used to file the actual motion record, which ensured that the Plaintiff would not show up on the day of the hearing and the judgment of Brown J. could be vacated on default.

[13] Ordinarily, this kind of allegation would leave me incredulous. However, Mr. Misir has also pointed out that the affidavit of service that accompanied this bundle of newspapers was sworn by a purported process server named Emad Elguindy, a man that Mr. Misir knows to be a convicted fraudster. Mr. Misir has produced reasons for judgment of this court which set out Mr. Elguindy’s convictions for fraud and breach of trust: R v Elguindy, Bracebridge Court File No. 07-09, July 22, 2009. It does seem rather coincidental that Mr. Misir alleges that he was served a fake motion record, and then it turns out that the ‘process server’ is a man who he knows (and who the Defendants know, since they are the ones who used him for this) who has been convicted of fraud and sentenced to 6 years in a penitentiary.

[14] At the outset of the hearing before me, counsel for the Defendants, who is new to this case, sought permission to file a transcript of the hearing before Brown J. on September 8, 2008, which she indicated her client had just obtained. She submitted that this will help shed light on what transpired before Justice Brown that led him to his erroneous conclusion that there was no Statement of Defense served pursuant to the order of Justice Swinton. Counsel for the Plaintiff objected to this late submission of evidence, and among other things pointed out that the transcript obtained by the Defendants is not certified by a court reporter. He submits that this is odd – court transcripts that are needed for subsequent appeals or other proceedings are always certified – and that this oddity should lead me to decline admitting it as evidence.

[15] Ordinarily, I would consider the lack of certification to be a clerical oversight – a matter of form over substance which I would overlook. Here, however, a formal breach of this type gives me pause. After all, this non-certified transcript is submitted by two Defendants, one of whom is a convicted forger and the other of whom has engaged in what by all appearances is a series of transactions designed to foil his creditors, and both of whom together have used a convicted fraudster as a process server who is alleged to have served a phony motion record on the Plaintiff.

[16] Having said all of that, the transcript of the hearing before Brown J. appears otherwise authentic. I have decided to admit it despite some misgivings, as it is potentially important to know what transpired during that hearing.

[17] As it turns out, Mr. Misir was represented by counsel on September 8, 2008, and his counsel at the time advised Brown J. in no uncertain terms that no Statement of Defense had been served. There is not much more to it than that. Unfortunately, Brown J. does not appear to have noticed in the court’s record that the Statement of Defense, although never received by the Plaintiff, was filed with the court. Being none the wiser, he therefore granted the order sought by the Plaintiff based on what appears to have been an innocent mistake by the Plaintiff; that is, the Plaintiff never received the Defendants’ pleading, and so assumed that none was ever sent to him and none was ever filed.

[18] Relying on the Court of Appeal in Mountain View Farms Ltd v McQueen, 2014 ONCA 194, Perell J indicated in Education Invention Centre of Canada v Algoma University, 2015 ONSC 1200, at para 5, that there are 5 elements to be satisfied for setting aside a judgment: (1) whether the motion to set aside the judgment was brought promptly; (2) whether there is a plausible excuse or explanation for the defendant’s default in complying with the judgment; (3) whether the facts establish at least an arguable defense; (4) the competing potential prejudice to the parties of granting or refusing to set aside the judgment; and (5) the effect of any order on the overall integrity of the administration of justice.

[19] Under the circumstances, none of these factors establish a strong argument for setting aside Justice Brown’s judgment. I am especially concerned about factor 3 – whether there is an arguable defense. In one sense, I am in the fortunate position of knowing precisely what the defense will be. While assessing the potential defense is often a matter of argument and speculation, in this case the Defendants already filed their pleading back in 2004, although since it was not properly served its existence went unnoticed by Brown J.

[20] The Statement of Defense contains 9 paragraphs. The first 3 simply identify which paragraphs in the Statement of Claim the Defendants admit and deny. Paragraphs 4, 7 and 8 address what the Defendants say is the improper use of two names for the Defendant, Rajendra Narine/Hardial Singh, while paragraph 6 states that the Defendants have started another action against the Plaintiff (which, I am advised, was administratively dismissed long ago). That leaves paragraphs 5 and 9 as the only places where there is a substantive defense set out by the Defendants.

[21] Paragraph 5 reads, in its operative part:

Geree Misir denies all the allegations in paragraphs 5 to 13 of the Statement of Claim. She states that all of the allegations are false and are concocted.

[22] Paragraph 9 reads, in its operative part:

Both Defendants state that the action was commenced by the Plaintiff with malice and in bad faith. None of the allegations have any basis in fact. The Defendants submit that this action be dismissed with costs on a substantial indemnity basis.

[23] That is the extent of the substantive defense. There is nothing to the Statement of Defense beyond bald denial. The Defendants do not let anyone know in their pleading whether they have a version of their own in respect of the facts pleaded against hem in the Statement of Claim. Most importantly, the Plaintiff’s central allegation – that they maliciously caused him to be prosecuted on false criminal charges – is never addressed in the Statement of Defense.

[24] The pleading suggests that the entire defense strategy is to continue doing what the Defendants have done all along: deny and delay. Having put their bald and unparticularized defense in writing, the Defendants have given away the fact that they have no factually plausible defense on which they rely.

[25] The Defendants’ motion to set aside the Order of Brown J. that reinstated the judgment of Wilkins J. is accordingly dismissed.

[26] The Plaintiff’s application to take steps to enforce the judgment of Wilkins J. is granted. The Plaintiff shall have an order to sell the property municipally known as 29 Ponymill Drive, Scarborough, Ontario owned by the Defendant, Hardial Singh. The Plaintiff shall apply the proceeds of this sale toward satisfying the judgment of Wilkins J. and all costs orders against the Defendants.

[27] The Plaintiff deserves his costs of the application and motion.

[28] Counsel for the Plaintiff has submitted a Bill of Costs for this application and motion seeking over $16,700 in fees and disbursements, on a partial indemnity scale. Counsel for the Defendants has submitted a Bill of Costs seeking over $6,150 in fees and disbursements.

[29] Costs are discretionary under section 131 of the Courts of Justice Act. Given their many manipulations over the years, the Defendants cannot be surprised that they put the Plaintiff to substantial costs; indeed, that appears to have been part of the strategy. Under Rule 57.01(1)(0.b) of the Rules of Civil Procedure, I am authorized to take into account, inter alia, “the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed.”

[30] I hasten to add that I do not blame the Defendants’ present counsel for any of this. She did a very competent job with a difficult case, and worked as efficiently as can be expected. But the Defendants, who have been representing themselves for the past few years, are responsible for bringing the Plaintiff into court and incurring substantial fees.

[31] The Plaintiff’s costs, while higher than the Defendants’, are reasonable. This was a matter that required substantial digging into the past record of proceedings, which I have no doubt consumed the time that counsel for the Plaintiff says it consumed. Counsel for the Plaintiff was well prepared for the hearing, and this preparation paid off in the result of the application and motion.

[32] The Defendants shall pay the Plaintiff a total of $16,700 in costs in respect of this application and motion, inclusive of fees, disbursements, and HST.

[33] In addition, I will take this opportunity to reiterate that the Defendants must still pay the Plaintiff $11,000 in outstanding costs orders from the previous two motions. In total, the Defendants owe the Plaintiff $27,700 in costs. The Defendants shall take no further steps in this matter – including the issuing of any separate claim against the Plaintiff – without first paying the $27,700 in costs to the Plaintiff.

Morgan J. Date: July 19, 2016