CITATION: 6443923 Canada Inc. (Zesty Market) v. Kablou, 2017 ONSC 834
COURT FILE NO.: CV-09-46135
DATE: 20170203
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 6443923 Canada Inc., c.o.b. as Zesty Market, Plaintiff
AND
Yashar Kablou, Defendant/Plaintiff by Counterclaim
AND
Ali Karimi and Nava Vosough, Defendants by Counterclaim
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Eric Lay, for the Plaintiff and Defendants by Counterclaim
Iain B. McBride, for the Defendant/Plaintiff by Counterclaim
HEARD: December 16, 2017 (in Ottawa)
ENDORSEMENT
[1] These reasons apply in this action and to a parallel motion brought in action CV-09-46136.
[2] The defendants seek orders dismissing or staying these actions as abuses of process or for failure to comply with interlocutory orders.
[3] Briefly, these are both actions in which the plaintiff sues two of its employees for allegedly stealing money from the Zesty Market where they worked. The corporation is controlled by the defendants by counterclaim.
[4] There were originally three such actions. The other bears court file number CV-09-46138 and on a previous occasion in my capacity as master I made an order that the three actions be tried together. I also made certain orders for security for costs applicable to all of the actions.
[5] The abuse of process argument arises from the fact that Mr. Karimi was charged and convicted of criminal harassment, extortion and inducing payment of money by threats in connection with these three employees. In the course of the criminal proceeding the jury found that the thefts alleged in these civil proceedings did not occur.
[6] In action CV- 09-46138 there was a summary judgment motion before Justice Beaudoin and he granted judgment dismissing the action on precisely this basis.[^1] That decision was subsequently upheld by the Court of Appeal but the plaintiff has sought leave to appeal to the Supreme Court of Canada.
[7] I agree with the conclusion reached by Justice Beaudoin and the evidence in these two actions is not materially different. In my view it is an impermissible collateral attack on the verdict in the criminal proceeding to continue with these actions, particularly since part of the disposition of the criminal case was an order of restitution in favour of the defendants.
[8] It would bring the administration of justice into disrepute if a man convicted of criminal offences on the basis that he made false allegations of theft against these plaintiffs is then permitted to proceed with a civil action based on identical allegations. In effect he would be allowed to continue the persecution and harassment for which he has just been convicted.
[9] In addition, since there was an order for trial together and the policy-based argument for the stay is materially identical, and it was clearly the intention of that order that the abuse of process defence would apply in each of these actions, I regard the decision to proceed with summary judgment on only one of the actions as effectively constituting it as a test case.
[10] I would grant a stay of each of these proceedings subject to the possibility that the Supreme Court of Canada gives leave and overturns the Beaudoin judgment. Should that occur then my conclusion would have to be revisited. Accordingly there will be temporary stay pending that decision and if leave to appeal is not granted, or the appeal is not successful, the stay will be made permanent.
[11] With respect to the outstanding costs awards, I direct that costs ordered in any of these three proceedings to date be paid out of the $10,000.00 security for costs previously posted. In the event the stay is lifted, the plaintiff is to replenish the security.
[12] Regardless of the outcome in the Supreme Court of Canada, the defendant by counterclaim should also be required to pay the restitution ordered by Justice Ratushny as a condition of these actions proceeding. Mr. Karimi attempted unsuccessfully to appeal the criminal conviction and sentence to the Court of Appeal and the Supreme Court of Canada. It would be unjust and would bring the administration of justice into disrepute if he is allowed to avoid this penalty by seeking to undo it through these civil proceedings.
[13] In conclusion there will be an order as follows:
a. These actions are stayed on a temporary basis pending the decision on the leave to appeal application or, if leave is granted, pending the outcome of the appeal. If leave is not granted or if the decision of Justice Beaudoin is upheld then the stay will be made permanent.
b. Any outstanding costs awards in any of the three actions are to be paid out of the $10,000.00 security for costs previously posted.
c. In the event the plaintiff seeks to lift the stay, the plaintiff is to replenish the $10,000.00 security for costs and is to provide proof that the defendant by counterclaim has fully satisfied the restitution orders made by Justice Ratushny.
d. The parties may make submissions regarding the costs of this motion in writing. Each party may submit a costs outline and a written submission of no more than two pages within the next 30 days.
Mr. Justice C. MacLeod
Date: February 3, 2017
CITATION: 6443923 Canada Inc. (Zesty Market) v. Kablou, 2017 ONSC 834
COURT FILE NO.: CV-09-46135
DATE: 20170203
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: 6443923 Canada Inc., c.o.b. as Zesty Market, Plaintiff
AND
Yashar Kablou, Defendant/Plaintiff by Counterclaim
AND
Ali Karimi and Nava Vosough, Defendants by Counterclaim
BEFORE: Mr. Justice C. MacLeod
COUNSEL: Eric Lay, for the Plaintiff and Defendants by Counterclaim
Iain B. McBride, for the Defendant/Plaintiff by Counterclaim
ENDORSEMENT
C. MacLeod J.
Released: February 3, 2017
[^1]: 6443923 Canada Inc. (c.o.b. Zesty Market v. Khodabandeh, 2015 ONSC 7465; upheld 2016 ONCA 561; leave to appeal sought, September 30, 2016.