CITATION: Derakhshan v. Narula, 2017 ONSC 1429
COURT FILE NO.: FC-13-709-0
DATE: 2017/03/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FARHAD DERAKHSHAN
Applicant
– and –
SEEMA NARULA
Respondent
Farhad Derakhshan, Self-Represented
Denyse Boulet, for the Respondent
HEARD: February 28, 2017
REASONS on motions brought by applicant heard february 28, 2017
SHEARD J.
[1] The Applicant Farhad Derakhshan (“Derakhshan”) brought two motions, both returnable this day. These motions were brought before me as I am the trial judge. There were nine days of trial between November 28 and December 8, 2016. The trial is scheduled to resume on April 3, 2017 for a further 12 days. The last trial day is expected to be April 20, 2017.
[2] The motions brought by Derakhshan are found in his two bound briefs entitled: “Motion filed January 31, 2017” and “Amended Motion dated February 28, 2017”. The motions are similar, but not identical. The orders sought include:
(1) that Derakhshan’s proposed appraisal expert, either Rick Seguin or Steven Audet “or any other certified appraiser agreed upon”, to visit certain properties in order to evaluate the renovations performed by Derakhshan and or his company and/or to provide an opinion as to the present fair market value of the properties;
(2) leave to amend the claim to add as parties:
(i) Indra Singh (the mother of the Respondent, Seema Narula) (“Narula”);
(ii) Turtle Island Staffing and Dynamic Personnel, two corporations of which Narula is a shareholder and/or owner; and
(iii) Mary Anne Dumont, a shareholder of Turtle Island Staffing;
(3) requiring Narula to produce certain documents including: personal tax returns and supporting documentation from January 1, 2003 to December 30, 2012 and her notices of assessments for 2003 to 2008; the original shareholder agreement and documents for Turtle Island Staffing and documents involving Derakhshan and Mary Anne Dumont that were signed at the Doris Law Office; copies of documents signed at Charles Rotenberg’s/Doris Law office concerning Sterling Global (another corporation in which Narula has an interest or owns) and Turtle Island Staffing, that were signed in 2008 and 2009 and all amendments or changes to those documents up to January 2013; all documents “signed for Sterling Global when the company between 2009 and January of 2013” (sic);
(4) “combining” Small Claims Court Action SC-13-00126242-000 with this proceeding;
(5) transferring telephone number 613-748-7777 (for Netfront Technologies) to Derakhshan or alternatively an order transferring that telephone number to Netfront Technologies/Derakhshan;
(6) Derakhshan’s costs of these motions on a full indemnity basis, fixed and payable forthwith.
[3] I dismissed Derakhshan’s motions with costs to Narula. Costs will be determined by me following delivery of Narula’s Bill of Costs and docket sheets from Narula’s counsel, to be delivered by March 3, 2017, of any costs submissions delivered by Derakhshan on or before March 10, 2017.
[4] I gave brief oral reasons for the dismissal of Derakhshan’s motions with written reasons to follow. These are the written reasons.
Request for an Order Allowing his Appraiser to attend certain Properties
[5] In his submissions, Derakhshan advised that he seeks an order allowing his proposed appraisal expert, Rick Seguin, to attend the following properties, for the following purposes:
(1) 420 O’Connor Street, Ottawa, owned by Sterling Global, a non-party, to evaluate the renovations that Derakhshan claims to have performed on the property and to provide an opinion as to the current fair market value of this property.
The appraiser would refer to four photographs taken by Derakhshan during the renovations, which have been produced in this litigation from which the appraiser would be asked to determine the value of the renovations completed by Derakhshan;
(2) 4885 Hawthorne Road, Ottawa, owned by Narula. This property did not have significant renovations and Derakhshan simply seeks authorization for his appraisal expert to attend this property in order to provide an opinion as to current fair market value;
(3) 1522 Tonilee Drive, Ottawa. Derakhshan withdrew his request regarding this property when he was advised that it is not owned by Narula or any family member or related company;
(4) 19 Kindle Court, Ottawa, owned by Narula. Derakhshan advises that this property was renovated after his involvement with Narula had ended and seeks only that his appraiser be permitted to see the property so he can provide an opinion on its current fair market value. Derakhshan conceded that he does not know what renovations were done and could not tell his expert how to adjust his valuation to account for the renovations done by Narula;
(5) Penthouse #2, 10 Main Street, Ottawa, owned by Narula. No known renovations were conducted on this property and Derakhshan seeks authorization for his appraisal expert to attend this property in order to provide an opinion as to its current fair market;
(6) 8664 McArton Road, Ottawa, owned by Sterling Global. Derakhshan seeks authority for his appraiser to enter the property to provide an opinion as to its current fair market value; and
(7) 1766 Peter Robinson Road, Ottawa, is owned by Narula. Derakhshan seeks authorization for his appraisal expert to enter this property for the purpose of providing an opinion as to its current fair market value.
[6] Narula objected to the relief sought on Derakhshan’s motions on a number of grounds. Firstly, and principally, the Family Law Rules, O. Reg. 114/99 require that expert reports be served 90 days before the commencement of trial. The trial commenced in November, 2016 and, therefore, Derakhshan cannot comply with that requirement. Derakhshan offered no evidence about how quickly the reports could be prepared and served. Narula further argued therefore that it seemed inconceivable and at best, unlikely, that it would take less than a week or possibly two, for the properties to be inspected, appraised, and, where required, an estimate prepared as to the value of the renovations Derakhshan completed many years ago, assuming that it is even possible to make that determination. The resulting reports would then be served on Narula weeks before the trial is scheduled to resume on April 3, 2017; insufficient time for her to obtain reply opinions, if desired.
[7] To provide for procedural fairness to Narula, who would be entitled to respond to new expert reports, an adjournment of the trial would be needed, something that has not been asked for by Derakhshan nor consented to by Narula. She argues that to grant this relief would be extremely prejudicial to Narula. I agree. There are other reasons for refusing to grant this relief.
[8] In his submissions, Derakhshan conceded that it was only in the course of the trial that he determined that he needed expert appraisal evidence. He acknowledged that the spreadsheet that he prepared purporting to summarize the renovation work he did, including the cost of materials and labour, was not admitted as evidence at trial. Derakhshan had not produced to Narula any of the receipts, invoices and other related documentation from which he purported to prepare this spreadsheet.
[9] Notwithstanding the absence of any admissible trial evidence on the point, Derakhshan proposed that his expert could base his opinion as to the value on those renovations on information from Derakhshan or from Narula about the renovations. To the extent she had helpful information respecting the renovations, Narula was neither obligated to nor did she consent to assist Derakhshan’s expert. Therefore, Derakhshan’s expert would be left to base his opinion on what Derakhshan told him, which evidence was not before the Court. On that issue at least, the expert report would have no value.
[10] Narula also objected to this relief on the basis that Derakhshan had not provided any evidence that his expert appraiser has the qualifications to provide a value of the renovation work done or has agreed to testify at trial. Again, without both, the report would be of no assistance to the determination of the issues before the Court.
[11] I accept all the grounds put forth by Narula as valid reasons for denying this relief.
[12] In addition, Derakhshan’s request comes far too late. If granted, it would cause significant prejudice to Narula and, to the extent that opinions/reports were provided (assuming that Mr. Seguin could even provide such an opinion), the Court could give no weight to any value attributed to renovations when there is no credible or reliable evidence before the Court as to what renovations were completed by Derakhshan. Moreover, the renovations were completed many, many years ago and, even if the scope of the renovations could be determined, which is in doubt, given the passage of time and given the possibility of other changes to the properties that occurred on and after Derakhshan ceased having any involvement with Narula, any opinion as to the value of those renovations would be so unreliable as to offer no assistance to the determination of the issues in this trial.
Concern over Length of Trial
[13] The Court must also look closely at the conduct of this trial. After nine days of trial, it became clear that the trial time was grossly underestimated. The trial has proceeded very slowly in large part because of the conduct of Derakhshan. He was often unprepared; his documents disorganized; and he was unable to focus his evidence on important issues and spent inordinate amounts of time to make points which might otherwise have been admitted. For example, rather than asking Narula to admit that he played a significant role in her daughter’s wedding, at trial Derakhshan presented video excerpts and copious photographs of the wedding. That evidence consumed hours of trial time and was marginally relevant, if at all, to the issue of whether or not Derakhshan and Narula were in a common-law relationship.
[14] Just prior to making his submission the motions, Derakhshan indicated that he intends to call a great number of witnesses when the trial resumes. By his estimates, the examinations-in-chief of those witnesses would consume 25 hours of trial time, before allowing any time for cross-examination. There are twelve more trial days scheduled. The parties agree that Narula’s evidence in-chief will take two days and that Derakhshan’s cross-examination will take a further two days. Narula is also proposing to call her two daughters as witnesses. Their examinations and cross-examinations are expected to take two days in total. That would leave just six scheduled trial days for Derakhshan to present the balance of his case, including cross- examinations. Aside from the concern that the expert evidence would be of no probative value, to add expert(s) to Derakhshan’s full witness list would lengthen the trial unduly and would almost inevitably require additional trial days to be scheduled at some future date.
[15] Even as scheduled, the trial is anticipated to take 21 days, without allowing any time for closing argument. I am satisfied that it would be impossible to compensate Narula for the prejudice to her of a further extension of the trial and the accompanying delay in its completion. Moreover, there is a strong likelihood that the parties would encounter great difficulty in securing 12 court days in the immediate or even the distant future. Therefore, any delay in the trial now, could result in its not being resumed until 2018 or later, given the current availability of trial time.
[16] For all of the foregoing reasons, Derakhshan’s request relating to appraisal experts was dismissed.
Request to add New Parties to the Application
[17] There are many obvious reasons why Derakhshan’s request to add new individual and corporate parties to this claim cannot be granted. Firstly, we have already completed nine days of trial. To add parties to this application after nine days of trial would put them (and Narula) in an impossible position. No amount of compensation could create fairness to those new parties or to Narula.
[18] Rule 11(3) of the Family Law Rules allows a court to amend an application, answer or reply “unless the amendment would disadvantage another party in a way in which costs or an adjournment could not compensate.” As stated above, Narula has argued that the prejudice to her of granting the relief sought by Derakhshan could not be compensated in costs or by an adjournment. Further, it is far from clear that Derakhshan is even in a position to satisfy an order of costs. This litigation has been ongoing for years and, in his evidence, Derakhshan has stated that he has very modest assets and income.
[19] To add to the many other reasons to deny this ground of relief is the fact that none of the proposed parties was given notice of Derakhshan’s motion. This is contravention of Rule 14(3) of the Family Law Rules. Had those parties been given notice, they might well have resisted being added as parties on the basis that any claim is barred by operation of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
[20] Narula further argues, as she has done throughout the trial, that the case she has to meet has been a “moving target”. She referred to the decision of Justice Myers in Moghimi v. Dashti, 2016 ONSC 2116 in which he noted that pleadings are intended to provide notice to the other party of the case that she has to meet. Choices and decisions are made based on those pleadings.
[21] In this case, changing the pleadings, adding parties, and allowing new expert evidence, nine days into the estimated 21-day trial would be utterly unfair to Narula. Derakhshan is simply too late to be asking for such orders.
[22] What may be of greatest concern is that, when fearing that his motion to add parties was not receiving a favourable response, Derakhshan admitted in his submissions that the only reason he wanted to add those persons and corporations as parties was to ensure that they could not refuse to come to court. That is not a valid or proper purpose to add parties to a proceeding. Moreover, by virtue of having heard motions in the course of this trial concerning the Summonses to Witness used by Derakhshan to compel the attendance at trial of certain government employees, the court is aware that Derakhshan is familiar with the mechanics of how to compel the attendance of a witness at a trial.
Production Orders: Previously Decided by another Judge
[23] The Orders that Derakhshan sought for the production of certain documents were sought and dismissed on a motion heard by Justice Roger on March 16, 2016. Derakhshan initially argued that Justice Roger had not dismissed his motion. He also submitted that because of the evidence that came out during the trial, and that he now believes that the production orders should be reconsidered. It is worth noting that Derakhshan has not completed putting in his case so that the evidence, in chief at least, was the evidence that he or his witnesses put forward.
[24] I reviewed the endorsement of Justice Roger and determined that Narula is correct in her submissions that Justice Roger dismissed Derakhshan’s requests for production of Narula’s tax returns and other tax information as well as other requests, referred to below.
[25] With respect to production of other documents, Derakhshan acknowledged that this motion is his first request for the additional documents that he was seeking (which included production from third parties): copies of certain documents signed at Charles Rotenberg’s/Doris Law office concerning Sterling Global and Turtle Island Staffing, etc.
[26] For all the reasons set out above, Derakhshan’s request for production of new documents comes too late. The time for identifying and obtaining documentary production is prior to trial. It is unfair to Narula to make orders for production of new documents on an ongoing and ad hoc basis merely because Derakhshan has just now decided that these documents might be important to his case. Furthermore, I was not satisfied that the documents that Derakhshan is now seeking are relevant to the issues in this litigation or could offer any probative evidence.
[27] In conclusion, it is simply too late to be asking for production of documents that may or may not be relevant or probative and which will undoubtedly be costly to obtain and will delay the disposition of this long-standing litigation and the completion of the trial. That relief was therefore dismissed.
Consolidation of the Small Claims Court Action with this Action
[28] This issue was also raised before Justice Roger in March 2016 who dismissed this request. Even had the issue not already been judicially determined, I would have dismissed it now: after nine days of trial, it is too late to consolidate this claim with a Small Claims Court Action or any other action.
Order for the Transfer of a Telephone Number
[29] This issue was also raised before Justice Roger and dismissed by him is res judicata. This Court has no authority to overturn or vary an order of a judge of this Court.
Disposition
[30] Derakhshan’s motions were wasteful of time and money and for all the above reasons, were dismissed with costs to Narula.
[31] As per the timeframe given in my oral reasons, the parties are to deliver costs submissions. My costs decision will follow by separate endorsement.
Sheard J.
Released: March 3, 2017
CITATION: Derakhshan v. Narula, 2017 ONSC 1429
COURT FILE NO.: FC-13-709-0
DATE: 2017/03/03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FARHAD DERAKHSHAN
Applicant
– and –
SEEMA NARULA
Respondent
__________________________________________
REASONS on motions brought by applicant heard february 28, 2017
Sheard J.
Released: March 3, 2017