REASONS FOR DECISION

CHARNEY J.:

Introduction

[1] The defendant, Parvin Kazemi, brings this motion to set aside the summary judgment for $50,000 obtained by the plaintiff, Peter Terrance Marino, on March 1, 2018 on the ground that the motion for summary judgment proceeded without notice to her.

[2] Ms. Kazemi is the mother of the co-defendant, Keyvan Akvan, who passed away on February 14, 2018.

[3] Shiva Zareian-Jahromi, who is Mr. Akvan’s former spouse, asserts that she is the Estate Trustee, although no documents have been filed on this motion to corroborate that claim. I also note that Ms. Zareian-Jahromi is the applicant in a Family Law proceeding against the Estate of Keyvan Akvan (Court File # FC-18-055891). There does not appear to have been an appointment of an Estate Trustee During Litigation, and I question how Ms. Zareian-Jahromi can be both Estate Trustee and an applicant in a proceeding against the Estate, although that issue is not before me. Ms. Zareian-Jahromi advises that the Estate is not seeking to set aside the summary judgment as against Mr. Akvan, and I have no contrary information at this time.

Facts

[4] On September 8, 2017, the plaintiff in this proceeding brought a civil action against Mr. Akvan and Ms. Kazemi, alleging that the plaintiff loaned $50,000 to Mr. Akvan. The Statement of Claim alleges that the bank draft was put in the name of Ms. Kazemi because Mr. Akvan used his mother’s identity and bank accounts to avoid judgment creditors. While the Statement of Claim is unclear, it appears that the alleged loan was made in June 2016 and default occurred in October 2016.

[5] The plaintiff was self-represented in this action.

[6] The co-defendants retained Mr. Alvin Meisels to represent them in this action. A Statement of Defence was filed on behalf of the defendants in October 2017, denying that Mr. Akvan borrowed money from the plaintiff, and alleging that the $50,000 was remuneration in respect of services rendered to the plaintiff by Mr. Akvan. The Statement of Defence also denies that the defendant, Ms. Kazemi, had any knowledge or involvement in the affairs between the plaintiff and Mr. Akvan.

[7] In October 2017, Mr. Meisels and the plaintiff canvassed dates for the plaintiff’s intended motion for summary judgment. On December 17, 2017, they agreed to a long motion date of January 31, 2018.

[8] In January 2018, Mr. Akvan was diagnosed with cancer.

[9] On January 17, 2018, Mr. Meisels received the plaintiff’s Motion Record for the summary judgment motion returnable on January 31, 2018. Mr. Meisels notified the plaintiff that he required an adjournment of the motion date for the following reasons:

(a) Mr. Akvan would not be returning to Canada until the following week, which did not leave Mr. Meisels with sufficient time to prepare reply affidavits;

(b) Mr. Meisels intended to cross-examine the plaintiff on the affidavit filed in support of the motion for summary judgment; and

(c) Mr. Meisels intended to bring a cross-motion to strike portions of the Statement of Claim and to seek security for costs.

[10] The plaintiff agreed to adjourn the summary judgment motion to July 4, 2018.

[11] Upon obtaining the plaintiff’s consent to adjourn the motion, Mr. Meisels e-mailed a copy of the Motion Confirmation Form to the Court to adjourn the January 31, 2018 motion to July 4, 2018. The plaintiff was copied on this email.

[12] On February 1, 2018, the plaintiff emailed Mr. Meisels, advising him that “things are happening fast so I may have to move forward with a rush motion”. The plaintiff indicated that he knew that Mr. Akvan was in very poor health and might die soon, and he believed that both defendants were in California and had listed their property for sale.

[13] On February 14, 2018 the plaintiff emailed Mr. Meisels to ascertain whether he was available for a motion on March 7, 2018. Mr. Meisels advised the plaintiff that he was in Sudbury on March 7, but would be available the following week on March 14, 2018. Mr. Meisels stated:

If you intend to bring a motion, whether for a certificate of pending litigation or any other relief, I’ll need you to serve your motion record within a week in order to give me time to get instructions and deliver a reply.

[14] On February 20, 2018, Mr. Meisels emailed the plaintiff to notify him of Mr. Akvan’s death the previous week. He also reconfirmed that he was lawyer of record for the defendants and the plaintiff could serve Mr. Meisels with any affidavits and documents.

[15] On February 26, 2018, Mr. Meisels received an email from the plaintiff, which stated:

Alvin, I’m going to court this Thursday due to new very serious developments.

I haven’t heard back from you nor received the guarantees that I requested from the defendants last week now combined with new serious information my matter needs to be dealt with on an urgent basis.

[16] Mr. Meisels replied the same day, asking the plaintiff to disclose the “new serious developments”.

[17] The plaintiff replied the same day with the following cryptic statement:

Alvin, due to your clients behaviour, I can’t disclose at this time, but when I do, it will be very self explanatory. I will do so asap.

[18] At no time was Mr. Meisels served with a new Notice of Motion or Notice of Return of the plaintiff’s original motion for summary judgment. At no time was Mr. Meisels made aware that the plaintiff intended proceed with the summary judgment motion on March 1, 2018.

[19] On March 1, 2018, the plaintiff attended before Boswell J. to argue his summary judgment motion. In his endorsement Boswell J. states: “The materials for this motion were served on the defendants’ lawyer in January 2018. No material has been filed in response. No one appears today for the defendants”. The court granted summary judgment to the plaintiff for $50,000.

[20] While it is correct that the materials for the motion were served on the defendants’ lawyer in January 2018, the return date on the material served was January 31, 2018, a date that was adjourned on consent to July 4, 2018.

[21] On April 27, 2018, Mr. Meisels learned from Ms. Kazemi’s daughter that there was a default summary judgment granted against the defendants. This information came to his attention as a result of the family law proceedings commenced by Ms. Zareian-Jahromi.

[22] Mr. Meisels attended the court office to obtain copies of the affidavit of service relied upon by the plaintiff, and a copy of the judge’s endorsement. The documents could not be found at that time, but were finally located in June 2018. Mr. Meisels was not served with a copy of the default summary judgment.

[23] Mr. Meisels has sworn an affidavit in support of this motion in which he confirms that no Notice of Return of Motion for March 1, 2018 was ever served by the plaintiff, nor was there a Notice of Return of Motion in the court file.

[24] I have reviewed the court file and there is no Notice of Return of Motion.

[25] The Affidavit of Service filed by the plaintiff refers only to service of his Supplementary Affidavit on February 21, 2018. The plaintiff’s Supplementary Affidavit, which is dated February 20, 2018, confirms that the motion for summary judgment was originally scheduled to be heard on January 31, 2018, “and now to be heard July 2018”.

[26] Mr. Meisels also states that he never received the Plaintiff’s Confirmation of Motion for March 1, 2018, which was faxed to the Court.

[27] On December 31, 2018, Ms. Kazemi’s new lawyer wrote to the plaintiff to advise him that the default judgment was granted without proper notice to the defendants and that he had instructions to bring a motion to have the judgment set aside.

[28] The plaintiff responded with a threatening email, asking the lawyer for his home address “so you can save me the time looking it up”.

[29] Ms. Kazemi has explained that her delay in bringing this matter forward was the result of her son’s death and her having to deal with legal issues related to the release of his body in California, as well as the time consumed by subsequent family law proceedings commenced in April 2018 by Ms. Zareian-Jahromi against Mr. Akvan’s Estate and Ms. Kazemi.

[30] The plaintiff has filed an affidavit dated June 6, 2018 to oppose this motion. The affidavit relates to the merits of his claim against the defendants, and does not address the issue of insufficient notice or contradict anything in Mr. Meisels’ affidavit.

Analysis

[31] Ms. Kazemi relies on Rule 37.14 of the Rules of Civil Procedure, which provides:

37.14 (1) A party or other person who,

(a) is affected by an order obtained on motion without notice;

(b) fails to appear on a motion through accident, mistake or insufficient notice; or

may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.

(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just.

[32] In the present case, I am satisfied that the defendants were not given proper notice that the plaintiff intended to proceed with his motion for summary judgment on March 1, 2018. The cryptic emails sent by the plaintiff to the defendants’ lawyer do not qualify as notice, and the only evidence before me is that the plaintiff did not send the Confirmation of Motion to Mr. Meisels.

[33] I understand that the plaintiff is self-represented, and may not be familiar with the proper way to give notice, but the evidence on this motion before me is that Mr. Meisels had no knowledge and no way of knowing that the plaintiff intended to have his summary judgment motion heard by the court on March 1, 2018.

[34] In these circumstances it would be unjust to permit the summary judgment order to stand and deny the defendant an opportunity to have her defence dealt with on the merits. Ms. Kazemi was represented by counsel and had filed a Statement of Defence. Her lawyer indicated his intention to oppose the motion for summary judgment and made every effort to cooperate with the plaintiff to schedule a date for hearing the motion. Her lawyer explained how the plaintiff could serve the relevant motion material in accordance with the Rules. The plaintiff failed to provide Ms. Kazemi’s lawyer with any notice that he intended to proceed with the summary judgment motion on March 1, 2018.

[35] In Sheikh v. Pearl, 2016 ONCA 523, at para. 66, the Ontario Court of Appeal held:

Although granting relief under rule 37.14 is discretionary, the requirements of the rule make it clear that a party or other person affected by an order who seeks relief must proceed with dispatch and that any significant delay could militate against granting relief. Particularly in a case involving a final order, the requirement to move promptly serves not only to avoid prejudice, but also to preserve the important value of finality in civil litigation.

[36] In the present case there has been some delay in seeking to have the Order set aside, but the delay is not excessive and the plaintiff has provided a satisfactory explanation for the delay.

Conclusion

[37] The motion to set aside Boswell J.’s March 1, 2018 summary judgment against the defendant, Parvin Kazemi, is granted.

[38] As indicated above, it is not clear to me whether Ms. Zareian-Jahromi is the Estate Trustee for Litigation and entitled to represent the Estate of Keyvan Akvan in this matter, and this decision is made without prejudice to the Estate requesting the same relief if Ms. Zareian-Jahromi did not have the authority to speak on behalf of the Estate.

[39] If the parties cannot agree on costs, counsel for Ms. Kazemi may serve and file costs submissions of no more than 3 pages plus costs outline and any offers to settle within 20 days of the release of this decision, and Mr. Marino may serve and file responding submissions of no more than 3 pages within 20 days thereafter.

Justice R.E. Charney

Released: July 16, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Peter Terrance Marino

Plaintiff

– and –

Keyvan Akvan and Parvin Kazemi

Defendants

REASONS FOR DECISION

Justice R.E. Charney

Released: July 16, 2019

Marino v. Akvan, 2019 ONSC 4290

Case Summary

REASONS FOR DECISION

Introduction

Facts

Analysis

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues