Court File and Parties

COURT FILE NO.: FC-13-709-0 DATE: 2016/03/01 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: FARHAD DERAKHSHAN Applicant Mr. Derakhshan, Self-Represented

– and –

SEEMA NARULA Respondent THE ATTORNEY GENERAL OF CANADA Non-Party Ian C. Vallance, for the Defendant

HEARD: December 8, 2016

REASONS FOR DECISION ON MOTION TO SET ASIDE SUMMONS TO WITNESS: SONIA DION

SHEARD J.

[1] This motion was brought by the Attorney General of Canada (the “A.G.”) to set aside a Summons to Witness served by the Applicant, Farhad Derakhshan, (“Derakhshan”) on Sonia Dion, an employee of Public Works and Government Services Canada (“PWGSC”). The grounds for the motion were that Derakhshan had failed to establish that it was likely and probable that Ms. Dion was in a position to give relevant and material evidence to the Court with respect to the issues in dispute in the trial; that the evidence Derakhshan sought to elicit from Ms. Dion was either not relevant, or not within her personal knowledge; and that the Summons to Witness amounted to a “fishing expedition” and was an abuse of process.

[2] The motion was granted, with written Reasons to follow. These are the Reasons.

Background

[3] This motion was brought in the middle of the family law trial in an application brought by Derakhshan against Seema Narula (“Narula”). Among other things, Derakhshan claims that Narula improperly transferred to herself his shares in Turtle Island Staffing, an incorporated personnel firm (“TIS”).

[4] In 2013, Derakhshan contacted the Industrial Security Program call centre to report certain allegations against Narula regarding TIS.

[5] In January 2013 Ms. Dion was employed as Chief of Investigations Division of the Canadian Industrial Security Directorate in the Industrial Security Sector of PWGSC.

[6] At the behest of Derakhshan, Ms. Dion conducted an investigation. She determined there were no irregularities with the personnel screening documents.

[7] On August 12, 2013 Derakhshan contacted Ms. Dion to ask for an update of her investigation and to provide her with further allegations against Narula and TIS. Ms. Dion informed Derakhshan that she had found no irregularities. She advised Derakhshan that any allegations of wrongdoing he might have concerning the control or mismanagement of Narula’s company fell outside the mandate of her office’s investigatory functions and that they should be referred to the police.

[8] There was no further activity on Ms. Dion’s file or contact to or from Derakhshan from August 2013 until November 22, 2016 when Derakhshan emailed the Summons to Witness.

[9] Derakhshan did not personally serve the Summons to Witness or provide her with attendance money, both of which are required for proper service of a Summons to Witness. Rather, he sent the Summons to Witness to Ms. Dion by email on November 22, 2016 and advised that he would send a copy by mail but a copy was never received by Ms. Dion.

[10] In his emails to Ms. Dion and to her counsel, Mathew Johnson (“Johnson”), Derakhshan explains what evidence he was seeking from Ms. Dion. To Ms. Dion he wrote:

(a) “Your attendance is required as a witness and to clarify some of the documents which have been found recently” (email dated November 22, 2016); and

(b) “Your testimony is needed to clarify these evidences for the judge to understand the nature of the transfer and how a multi-million dollar company was transferred to Ms. Narula for $1 without any witnesses and how she had to manipulate the system to carry on business” (email dated November 23, 2016).

[11] The following are excerpts from Derakhshan emails to Johnson:

(a) Ms. Dion’s “presence and her testimony is required at this trial as new evidences have been discovered which I am sure was not presented to her at the time of investigation” (email dated November 26, 2016);

(b) “…I can…ask her to simply be present to verify the documents which are all related to the company in relation to PWGSC and not the family matter” (email dated November 26, 2016);

(c) “Ms. Dion’s verifying the documents which I am sure she has not seen could help the case as it may go to civil court if the Judge orders so.” (email dated November 27, 2016);

(d) “Ms. Dion’s testimony will clearly show PWGSC’s willing to investigate security integrity and follow up to make sure that their system is not being misused and compromised” (email dated November 27, 2016); and

(e) “The documents are disclosed by the Respondent or made up and fabricated. Even if Ms. Dion had seen them she had no means of authenticating them unless she sees the real document.” (email dated November 27, 2016);

[12] Both in his oral submissions and in his emails, Derakhshan is clear that the reason for his calling Ms. Dion as a witness was to ask her to speak to documents that he had obtained in the course of this litigation with Narula, which documents have never been seen by Ms. Dion.

[13] Derakhshan did not file any sworn evidence on the motion but did file a brief that contained some of the above-referenced emails. The materials filed by the A.G. contained the complete email exchange.

Jurisdiction to set aside the Summons to Witness

[14] This Court has authority to set aside a Summons to Witness pursuant to Rule 23(9) of the Family Law Rules, O. Reg. 114/99 which provides that a court may, on motion, order that a summons to witness be set aside.

[15] The A.G. relies upon the principles set out in Dunphy v. Peel Housing Corporation that provides that a witness may only be required to testify at trial if the evidence sought to be elicited is relevant. Further, the party who issues the summons to witness has the burden of demonstrating that it is “likely and probable” that the witness has relevant evidence to give. (Dunphy, at paras 14 – 15).

[16] In a trial, evidence put before the court must be relevant to the issues. Although not in evidence on the motion, as the trial judge, I am aware from the pleadings that one of the issues is the purported fraudulent transfer of Derakhshan’s shares in TIS to Narula. Ms. Dion cannot provide any evidence on that issue.

[17] I accept the arguments set out in the Factum filed by the A.G. that the evidence that Derakhshan seeks from Ms. Dion is neither properly requested from her nor within her personal knowledge. In particular, Derakhshan seeks to call Ms. Dion at trial to give evidence upon the following three issues:

(1) to have Ms. Dion “verify” documents that she has not previously seen; (2) to ask Ms. Dion about how the TIS shares were transferred from him to Narula, a matter about which she has no firsthand or relevant knowledge; and (3) to give evidence relating to PWGSC’s willingness to investigate security issues.

[18] On the second issue, which I perceive to be the central issue to Derakhshan, Ms. Dion can offer no relevant evidence: she did not investigate the way in which the shares in TIS were transferred and has no knowledge on that issue. By contrast, based on the allegations made by Derakhshan, both in his pleadings and in his oral submissions at trial, the persons who might have that knowledge include Narula, the Respondent in this family law action.

[19] Again, I accept in their entirety the arguments put forth by the A.G. that Ms. Dion cannot give any relevant evidence. Derakhshan has failed to meet his onus of demonstrating that Ms. Dion has evidence that is relevant to this action and for that reason I set aside the Summons to Witness to Ms. Dion.

[20] Although there was no specific request or indication that Derakhshan intended to serve a new Summons to Witness on any other employee of the PWGSC, should one be served by Derakhshan in the future, these Reasons and the legal argument set out in the Factum of the A.G. should offer him clear guidance.

Costs

[21] As per my oral reasons, costs of this motion are awarded to the A.G. and payable forthwith by Derakhshan. Narula is also entitled to her costs of this motion for the trial time consumed by this motion.

[22] Unless the parties can otherwise agree on an amount for the costs, written costs submissions from the A.G. and from Narula, not to exceed three pages together with a Bill of Costs and any offer to settle, may be served and filed no later than 14 days after the release of these Reasons. Subject to the same directions on length, Derakhshan’s responding written costs submissions shall be served and filed within 14 days after the service upon him of the A.G.’s and Narula’s costs submissions.

The Honourable Madam Justice Liza Sheard Released: March 1, 2017