Court File and Parties

COURT FILE NO.: CV-12-462210 DATE: 20170412 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Djalaleddin Esfahani, Plaintiff AND: Kamran Samimi, Marina Samimi, Danny Aria Samimi, Layla Sabet, Shariar Moshtael and Klaus Hartman, Defendants

BEFORE: Sean F. Dunphy, J

COUNSEL: Anita Landry, for the Plaintiff Arnold H. Zweig, for the Defendants (Samimi, Sabet and Moshtael)

HEARD: April 12, 2017

Case Conference Endorsement

[1] On March 11, 2015, I released my endorsement on a mini-trial heard by me as a motion for partial summary judgment. My decision is reported at 2015 ONSC 657. The plaintiff was successful on the motion. The unsuccessful defendants’ appeal was dismissed by the Court of Appeal (Esfahani v. Samimi, 2016 ONCA 418).

[2] I found that defendants had engaged “in a series of transactions … with the intent to defeat, delay, hinder or prejudice the Plaintiff from receiving payment from Kamran Samimi for the outstanding judgment of Justice Nolan or enforcing same”.

[3] Unlike a stated case under Rule 22 of the Rules of Civil Procedure, I was being asked to make findings of fact on the assumption that the law was either undisputed or reasonably so. Although in form a motion for partial summary judgment, the motion was nevertheless analogous to a stated case in that the parties collectively agreed on the questions to be considered and placed before me the written and viva voce evidence they each thought necessary to decide it. Motions for partial summary judgment are generally intended to be the exception and not the rule, the reasons for which view are canvassed by the Court of Appeal in Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922. It was the expectation of the court in setting down this mini-trial for a hearing and mine in hearing it that all sides expected the answer to the question they formulated to be dispositive to their dispute.

[4] My decision answered the very issues the parties themselves had placed before the court. Unfortunately, notwithstanding the express findings of fraudulent intention and behaviour made by me and upheld by the Court of Appeal, the parties are still at daggers drawn about the enforcement of this judgment debt and the consequences to be drawn from the factual conclusions I reached. Two years and an unknown amount of further legal fees later, resolution of their dispute continues to elude them.

[5] In the course of the hearing of the mini-trial before me, it had come to my attention that the judgment debtor had made an assignment in bankruptcy and been discharged while the motion was waiting to be heard. My endorsement specifically dealt with that issue. I noted that, to the extent the claim was under the Fraudulent Conveyances Act, R.S.O 1990, c.F-29 (the “FCA”) - and the wording of the declaration I was asked to make mirrored that statute quite closely – that cause of action had vested in the trustee in bankruptcy who alone could bring it. The trustee had not been served with the motion and indeed had been discharged. As there were other direct and personal civil causes of action pleaded about which no argument had been heard and as the parties were fully prepared to conduct the trial after a long wait, I proceeded to hear the evidence and rendered my decision. In the end, I made the requested declaration but without prejudice to subsequent motions to determine whether any of the causes of action alleged to be personal to the plaintiff (as opposed to the FCA action belonging to the Trustee) could be pursued.

[6] I did not seize myself of the action as a whole or of any further motions the plaintiff might see fit to bring. The plaintiff having been the only creditor with a proven claim in the bankruptcy, the process of reviving the trustee and either taking an assignment of the claim or causing the trustee to pursue it would have been the work of but a moment – or at least as that term is conceived of in legal circles (i.e. a few weeks). The place to bring such a motion would be the Bankruptcy Court. In Toronto, this means the Commercial List, a court to which I am not and was not habitually assigned.

[7] I am advised that the plaintiff obtained an order from Archibald J. that an intended motion to pursue the personal causes of action should be heard by me on March 31, 2017. It appears that they represented to him that the intended motion was in some way a “continuation” of the motion I had already heard.

[8] If so, that characterization was inaccurate. I did not seize myself of this matter or any subsequent motions. My decision was a final one and was ultimately confirmed as such by the Court of Appeal. I was scheduled to be assigned to the Criminal division in January 2017 and have been assigned to that division of the Superior Court in Toronto since that time by the Regional Senior Judge until further notice by him.

[9] The plaintiff’s motion was confirmed for March 31, 2017 as required and I am advised that the case timetable agreed was adhered to. All necessary materials for the motion were served and filed. Unfortunately, the parties neglected to confirm this long motion thirty days in advance as required by the practice direction. On March 31, 2017, the parties were placed on the stand-by list simply because our civil list was over-booked that day and the lack of advance (30 day) confirmation had not permitted Court staff to match this motion with a judge in advance.

[10] Such things happen. The Superior Court is short several judges in Toronto waiting for appointments to be made by the Minister. Pending that happy event, priorities have to be set and the Supreme Court of Canada’s ruling in R. v. Jordan, [2016] 1 SCR 631, 2016 SCC 27 has resulted in available resources being deployed in priority to avoid breaching the Charter rights of accused persons.

[11] The corollary of this has been that civil team has by and large had to make do with future draft picks in lieu of the judges it requires to operate today. However the staff of the civil motions and trial offices regularly perform feats of wonder with little more than bailing twine and chicken wire and have kept the system afloat while waiting for reinforcements to arrive. This motion was not taken off the motions list despite the failure to confirm it as a long motion 30 days in advance. In the normal course, a judge would very likely have come free and been assigned this case in the afternoon and the matter would have been heard. It seems that the parties elected not to proceed that day because I was not available due to my commitments to the Criminal division of the court.

[12] Their decision was unfortunate.

[13] The parties appeared on a telephone case conference before me this morning to attempt to schedule a new date for the hearing of this motion before me.

[14] I have not seen any details of the motion brought by the plaintiff. It was not argued in front of me nor even bruited. I am not seized of that motion nor is it conceivably in the interest of justice that I be so seized given that this would introduce a delay of nine-months or longer in the path to having it heard. I cannot foresee the division to which I will be assigned next year and motions are not booked that far out in any event.

[15] The plaintiff of course still has the simple and direct option of moving under the BIA to pursue the FCA action in the manner I described in my endorsement more than two years ago, although I cannot say what limitation periods may now have come and gone. The plaintiff may also pursue the more novel path of the motion it has brought but failed to have heard on March 31, 2017. If the latter, the plaintiff must obtain a new date from CPC. If, as appears to be the case, all the materials necessary for the motion have been served and filed, an early hearing date should be available.

[16] For the avoidance of further doubt, I am not seized of anything in relation to this action.

[17] Nothing in this brief endorsement should be seen as discouraging the parties from actually resolving this case in accordance with the understanding they clearly had when framing the question that I was asked to and did decide more than two years ago.

Sean F. Dunphy, J Date: April 12, 2017