Court File and Parties

COURT FILE NO.: 03-CL-5217

DATE: 20190114

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ghareeb Awad and Transpacific Petroleum Corp., Applicants

AND:

Dover Investments Limited, Dover Petroleum Corp and Robert Salna, Respondents

BEFORE: Penny J.

COUNSEL: Ghareeb Awad on his own behalf

Howard Wolch for the Respondents

HEARD: January 11, 2019

ENDORSEMENT

[1] There are two motions before me. The applicants seek orders:

(1) "setting aside" the decision of Mr. Justice McEwen of January 6, 2015 on the basis of "new evidence" allegedly proving that decision was obtained by fraud, perjury forgery and deceit;

(2) awarding $500,000 in damages for obstruction of justice;

(3) providing a "meaningful" interpretation of a subparagraph of McEwen J.'s decision;

(4) "enforcing" an accounting ordered by Mr. Justice Spence in 2004;

(5) production of certain documents; and

(6) "seizing" the Master on the accounting ordered by Spence J. of all financial matters.

[2] The respondents seek orders:

(1) staying the applicants' motion; and

(2) authorizing the Master on the reference and accounting to make certain determinations regarding interest.

Background

[3] This proceeding was commenced by notice of application. Spence J. heard the application and issued a judgment in November 2006. He ordered Dover Investments to buy out the applicants' interest in a joint venture and ordered references to be conducted by a Master to determine the value of the applicants' interest in the joint venture and an accounting of the revenues received, the expenses incurred and the payments made under the joint venture agreement.

[4] As a result of endorsements released by Spence J. in June 2008 and March 2009, the references could not proceed until litigation in British Columbia had been concluded.

[5] Mr. Justice Loo of the British Columbia Supreme Court made orders affecting the applicants' interest in the joint venture. As a result of the applicants' appeals, however, the British Columbia proceedings were not concluded until September 2010 when the Supreme Court of Canada dismissed the applicants' motion for leave.

[6] There were then further proceedings before Spence J. in Ontario. In May and September 2011, Spence J. made orders that there be a trial of certain issues and that the reference previously ordered proceed in accordance with the decisions of Loo J. of the BCSC.

[7] In July 2013, Mr. Justice Morawetz ordered that the trial of issues proceed to hearing in 2014. The trial proceeded before McEwen J. McEwen J. released his reasons on July 6, 2015, with supplemental reasons issued March 6, 2016.

[8] The applicants moved to extend the time to file a notice of appeal and to file "new" evidence. That motion was dismissed by Mr. Justice Dambrot of the Divisional Court in May 2016. That decision was appealed to a full panel of the Divisional Court. The full panel dismissed the appeal in March 2017.

[9] The applicants appealed to the Court of Appeal for Ontario. Mr. Justice Miller refused to extend the time to move to set aside or appeal from the decision of the Divisional Court. A further appeal was taken to the full panel of the Court of Appeal. The full panel of the Court of Appeal dismissed the applicants' motion to set aside the decision of Miller J.A. in October 2017.

[10] Leave to appeal to the Supreme Court of Canada was sought by the applicants; that leave motion was dismissed in August 2018.

[11] Further, in September 2015, Mr. Awad issued another notice of application claiming entitlement to the benefit of certain other oil concessions. In March 2016, Madam Justice Conway dismissed this application as an abuse of process and an attempt to relitigate (and a collateral attack on) the orders and findings of Loo J. of the British Columbia Superior Court. Mr. Awad appealed Justice Conway's decision to the Court of Appeal. Madam Justice MacFarland refused to extend the time for appeal. That decision was further appealed to a full panel of the Court of Appeal. In February 2017, the Court of Appeal dismissed Mr. Awad's motion. Leave was again sought to appeal to the Supreme Court of Canada. Leave was denied in June 2017.

The Applicants' Motion

[12] The mainstay of the applicants' motion is the alleged "new evidence" of fraud and deceit. The record is clear, and Mr. Awad admits, that the new evidence discussed extensively in his material on the present motion was evidence he sought to put before the Divisional Court and the Court of Appeal. Altogether part from whether Mr. Awad has established grounds to admit new evidence under the test set out in R. v. Palmer (which, in my view, he has not), in the circumstances, where the applicant has already put the evidence before appellate courts on five occasions, I simply have no jurisdiction under Rule 59.06(2)(a) to either admit this "new evidence" or set aside the decision of McEwen J. on the basis of that evidence.

[13] Further, on the basis of the conclusions of both the Divisional Court and the Court of Appeal, the matters brought before me on this motion are all res judicata. The applicants' attempt to relitigate these issues in this motion is a blatant abuse of process.

[14] For these reasons, the applicants' motion is dismissed.

The Respondents' Motion

[15] As acknowledged by the respondents, there remains outstanding a reference, ordered by Spence J., for certain valuations and accounts. Mr. Awad agreed that the Master on the reference should have the authority to make determinations about the rates and availability of interest.

[16] Accordingly, I order the following additions to be made to the issues to be determined on the reference:

(1) What is the applicable rate of interest under the Courts of Justice Act for any money found to be owing to the applicants for REU revenue earned between June 1, 2004 to December 31, 2005, for the period up to November 24, 2006 (the date of Spence J.'s judgment)?

(2) What is the applicable rate of interest for money found to be owed other than for the period June 1, 2004 to December 31, 2005, both before and after the date of the judgment of Spence J?

(3) What pre-and post-judgment interest rates should be used to calculate interest on any money found to be owing in the reference for the accounting? and

(4) To what extent should delays occasioned by either party in the prosecution of these proceedings affect the award of the interest?

Costs

[17] Although Mr. Awad is not legally trained and is acting on his own behalf, he has participated in many legal proceedings. He cannot be ignorant, for example, of certain perils inherent in his approach to litigation. I say this because, on over a dozen occasions prior to this one, proceedings initiated by him have been found by other courts to constitute a collateral attack, an attempt to relitigate matters previously decided or an abuse of process of the court. In this very case, given the respondents' motion and factum, Mr. Awad could have been under no misapprehension about the problems with his motion and the hurdles he was facing.

[18] Mr. Awad would be well advised to stop pursuing these doomed attempts to relitigate matters already decided and focus on the completion of the reference and accounting ordered by Spence J., lo these many years ago.

[19] In addition, there are many outstanding (unpaid) costs orders against Mr. Awad totaling well over $150,000.

[20] In the circumstances, it appears orders of costs in the ordinary course are not creating any disincentives to bring hopeless proceedings which are doomed to fail. For this reason I award to the respondents substantial indemnity costs, inclusive of fees, disbursements and all applicable to taxes, in the amount $21,644.02 payable by Mr. Awad, jointly and severally with Transpacific, within 30 days.

Penny J.

Date: January 14, 2019