ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-15-83320
DATE: 2021 05 26
BETWEEN:
Sara Fatahi-Ghandehari
Self-Represented, assisted by S. Siddiqui
Applicant
- and -
Stewart Wilson
P. Robson for the Respondent
Respondent
R. Watson for the Braidmore parties
HEARD: In Writing
REASONS FOR DECISION
LEMAY J
[1] I am the case management judge in this complex series of actions and claims. The underlying case is a family law dispute between Mr. Stewart Wilson and Ms. Sara Fatahi-Ghandehari. That action proceeded as an undefended trial as a result of a contempt finding that was made against Mr. Wilson by Price J. (see 2017 ONSC 6034).
[2] The style of cause set out above reflects the family law action. At the next case conference, I will review with the parties the style of cause to capture all actions. However, this decision also applies to the Court actions in Milton Files CV 118/15, CV 2021/16 and CV 985/17 as well as Brampton action CV-17-0050-00 and Toronto action CV-19-628418. The Toronto action has been transferred to Brampton. There may be other actions that it applies to and we will address that at the next case conference. In the meantime, Court staff are directed to ensure that a copy of this decision is placed in all of the other files that I have listed in this paragraph.
[3] I have been the case management judge in this matter since early 2020. On August 19th, 2020, I released a detailed endorsement that set out my disposition of some questions relating to urgency and costs, as well as the next steps that needed to be taken to move this litigation forward. Those next steps required me to conduct the undefended family law trial and address the issue of whether the alleged marriage contract between Mr. Wilson and Ms. Fatahi-Ghandehari was valid.
[4] Last week, I released a decision on the undefended family law trial between Ms. Fatahi-Ghandehari and Mr. Wilson. Those reasons are reported at 2021 ONSC 3547. The Order flowing from those reasons and a copy of my reasons have been sent to the parties who had not participated in the trial.
[5] This decision addresses two issues, as follows:
a) Whether the matrimonial contract was properly before Price J. and properly considered by Price J. in his November 3rd, 2016 decision.
b) What the next steps in this series of actions should be.
[6] I will deal with each issue in turn. Before turning to those issues, it is helpful to set out some background facts.
Background Facts
a) The Parties
[7] Stewart Wilson and Sara Fatahi-Ghandehari were married on August 12th, 2007 and separated on December 4th, 2014. There were no children of the marriage. Mr. Wilson and Ms. Fatahi-Ghandehari have been engaged in contentious litigation ever since.
[8] Mr. Wilson runs a business renting out exotic cars. He has run this business since before his marriage to Ms. Fatahi-Ghandehari and continues to run it. Ms. Fatahi-Ghandehari worked in the business prior to the separation, but has not worked since.
[9] Mr. Jason Braidmore was one of Mr. Wilson’s business partners at one point. Some of his assets are subject to a preservation order as they appear to be assets that are beneficially owned by Mr. Wilson. In addition, Mr. Wilson has commenced litigation against Mr. Braidmore.
[10] There are also several numbered companies that are involved in this litigation. I will detail the specific claims below.
b) The Progress of the Litigation
[11] As I noted, this litigation started shortly after Ms. Fatahi-Ghandehari and Mr. Wilson separated. Claims have been brought relating to property and other assets as well as defamation. The main issues, however, have been in the family law litigation.
[12] The family law litigation was being case-managed by Price J. from sometime in 2016. The litigation started out with a series of production requests. Disclosure orders were obtained from the Superior Court of Justice on July 23rd, 2015 and July 7th, 2016. Mr. Wilson did not comply with these Orders. As a result, Ms. Fatahi-Ghandehari brought contempt proceedings before Price J.
[13] The history of the contempt proceeding is described in a number of decisions of Price J. (see 2016 ONSC 6863, 2017 ONSC 6034 and 2018 ONSC 5579), as well as in my reasons on the family law matter (see 2021 ONSC 3547 at paras. 13 to 26). Ultimately, Price J. concluded that Ms. Fatahi-Ghandehari was entitled to proceed with an undefended trial and Mr. Wilson was not entitled to participate in that family law trial.
[14] An important part of the litigation over the family law matter relates to preservation orders that Price J. has made. These orders involve not only Mr. Wilson and his companies, but Mr. Wilson’s mother Elizabeth Wilson, Mr. Braidmore and Mr. Braidmore’s companies. Elizabeth Wilson is also represented by Mr. Robson. The Braidmore parties are represented by Mr. Watson.
[15] The family law litigation has been completed and a decision has been rendered on it. At this point, it is now time to turn to the other claims and consider what should be done with them in light of the decision on the family law case. That consideration begins with the marriage contract.
The Marriage Contract
[16] In his November 3rd, 2016 decision (2016 ONSC 6863 at paras. 57 to 60), Price J. stated as follows:
[57] Mr. Wilson argues that Ms. Fatahi-Ghandehari will not be successful in asserting a claim to an equalization payment because the parties’ marriage agreement states that she is to remain the owner of her home and that he is to remain the owner of his business. He additionally relies on Justice Gray’s determination that the exotic cars are owned by him.
[58] The marriage contract deals with a house and a corporation that the parties no longer own. Additionally, I find that the Marriage Contract is not applicable for the following reasons:
a) Mr. Wilson has registered a Certificate of Pending Litigation for claims he makes against the Delfi property.
b) Exotic Cars Touring, or 224, was formed after the marriage contract was entered into, and the exotic cars that were held in the name of 224 have now been transferred to Straightforward.
[59] The parties’ Marriage Contract provided that they would divide equally their matrimonial home at Unit #211, 3400 Lakeshore Boulevard West, Toronto. Ms. Fatahi-Ghandehari states that in July 2009, the parties sold that home. The trust ledger produced by Mr. Wilson discloses that $15,122.33 of the net proceeds were paid to Ms. Fatahi-Ghandehari for the purchase of 4429 Delfi Road, and that $37,122.33 was paid to Mr. Wilson.
[60] Ms. Fatahi-Ghandehari states that the entire net proceeds were paid to Mr. Wilson, and were used by him to purchase a car.
[17] As I understand it, the marriage contract is a contract as to the ownership of property. Price J. appears to have found that this contract is of no force or effect because of events that took place subsequent to the signing of the marriage contract. Counsel for Mr. Wilson argues that, notwithstanding these findings, the issue of the validity of the marriage contract is not res judicata. Counsel advances the following points in support of that position:
a) The marriage contract was not put in issue in the hearing before Price J.
b) The parties had no notice that the issue of the marriage contract would be adjudicated by Price J. in the hearing before him.
c) Both parties sought to uphold the validity of the marriage contract during the course of this litigation.
d) The determination of the marriage contract’s validity was not necessarily bound up with the issue of contempt.
e) Fairness dictates that the findings of Price J. not be binding in the related civil proceedings.
[18] The initial submissions on this issue from Mr. Wilson’s counsel were limited to this list of concerns and a selection of case-law quotes. The reply submissions from Mr. Wilson’s counsel contained more substantive arguments about some of these points. I have considered both the arguments and how they fit with the cases that counsel has provided in reaching my decision. For the reasons that follow, I reject all of the arguments advanced by Mr. Wilson.
[19] I start with the question of whether the issue of the marriage contract was raised. Paragraph 6 of the Ms. Fatahi-Ghandehari’s application seeks a declaration that the marriage contract, dated July 24th, 2009 is valid and in force and effect. A considerable amount of the pleadings that Ms. Fatahi-Ghandehari filed addressed the marriage contract issue. Mr. Wilson’s response seeks a declaration that the marriage contract is not valid. As a result, the issue of the marriage contract was clearly raised by the parties in the family law litigation. Therefore, Mr. Wilson’s first argument fails.
[20] There are consequences that flow from my finding that the marriage contract was clearly raised by the pleadings in the matrimonial litigation. It was an issue between the parties in the matrimonial litigation and, even if Price J.’s decision is not dispositive of the issue, the striking of Mr. Wilson’s pleadings and the subsequent disposition of the matrimonial litigation is dispositive of any claims Mr. Wilson may have with respect to the marriage contract. In other words, the issue is subsumed into the disposition of the family law case.
[21] Then, there is the question of whether the parties had notice that Price J. would be addressing issues relating to the marriage contract in the 2016 hearing. Counsel for Mr. Wilson argues that the issue of the marriage contract was not placed before Price J. There are two responses to that argument:
a) Mr. Wilson had the right to appeal the decision of Price J., and in fact did so. Concerns about the scope of Price J.’s decision are matters that are more properly raised on appeal. I acknowledge that an appeal was taken to the Court of Appeal (see 2016 ONCA 921) and that the Court of Appeal determined that Price J.’s order was an interlocutory order. However, that determination did not prevent Mr. Wilson from raising the issue by way of an appeal to the Divisional Court.
b) In any event, the issue of the marriage contract was bound up in the question of whether a section 12 order should be made by Price J. As noted in Ms. Fatahi-Ghandehari’s submissions, if the marriage contract had been valid, it would not have been necessary (or appropriate) to make a section 12 order in this case. Further, Mr. Wilson clearly raised the marriage contract as a ground for denying the section 12 order. This point is also the answer to Mr. Wilson’s assertion, in reply, that it is orders and not reasons that are appealed. The foundation of this preservation order was a finding that the alleged marriage contract was of no force or effect.
[22] This brings me to Mr. Wilson’s argument that both parties sought to uphold the validity of the marriage contract. This submission is, at best, disingenuous. Ms. Fatahi-Ghandehari’s submissions illustrate the inconsistent positions that Mr. Wilson has taken on the marriage contract. These inconsistent positions are also clear on the record.
[23] I start with the observation that, in his original pleadings, Mr. Wilson sought to have the marriage contract treated as being void. This is inconsistent with the view that “both parties sought to uphold the validity of the marriage contract.”
[24] Similarly, in the October 10th, 2017 decision (2017 ONSC 6034), Price J. stated (at para 11):
Mr. Wilson states that he never signed the marriage contract, and received no financial disclosure or independent legal advice in connection with it. The agreement contains what purports to be Mr. Wilson’s signature, but the signature is not witnessed and the contract is undated.
[25] Mr. Wilson was seeking to have the marriage contract set aside when he filed his Answer, and that this position was generally (but not always) maintained in the litigation before Price J. However, Mr. Wilson was taking the inconsistent position that the marriage contract was valid in his appeal of Price J.’s orders to the Court of Appeal. These inconsistent positions do not support Mr. Wilson’s argument that he was always seeking to uphold the marriage contract. Further, Ms. Fatahi-Ghandehari challenged the alleged marriage contract at the hearing of the preservation order. There is no merit to Mr. Wilson’s position that both sides were seeking to uphold the marriage contract before Price J. when he made his preservation order.
[26] Then, Mr. Wilson argues that the determination of the validity of the marriage contract is not bound up in the contempt motion. There are two problems with that assertion:
a) The determination of the validity of the marriage contract was bound up in the question of the preservation Order that Price J. had to determine.
b) As I set out at paragraph 20, the consequences of Price J’s finding on the contempt motion was that Mr. Wilson’s pleadings were struck and he was no longer entitled to participate in the family law proceeding. The marriage contract was clearly bound up in the family law litigation.
[27] Given these points, I conclude that the determination on the marriage contract was an integral part of the decisions that Price J. made.
[28] This brings me to the final argument on res judicata. Counsel for Mr. Wilson argues that fairness should permit the issue of the marriage contract to be raised in the civil proceedings. I reject that argument for two reasons:
a) Principles relating to res judicata apply to Price J.’s findings in respect of the marriage contract.
b) Permitting the litigation of issues relating to the marriage contract in the civil litigation runs the risk of findings in the civil proceedings that are inconsistent with the findings in the matrimonial proceeding.
[29] First, the issue of res judicata. Counsel for Mr. Wilson directs my attention to the decisions in McIntosh v. Parent 1924 401 (ON CA), [1924] 4 D.L.R. 420; Toronto (City) v. C.U.P.E. Local 79 2003 SCC 2003 SCC 63, [2003] 3 S.C.R. 77, Re Robson 2006 17743 210 OAC 183 (C.A.) and Law Society of Upper Canada v. Groia 2013 ONLSAP 41, 2013 ONLSAP 0041.
[30] The most relevant passages come from the Supreme Court’s reasons in City of Toronto, supra. In that decision, the Supreme Court considered the issues of res judicata, collateral attack and abuse of process. Having reviewed the decision, it is my view that the most applicable doctrine to the facts before me is the abuse of process doctrine.
[31] At paragraphs 50 to 53 of Toronto, Arbour J. states:
50 It has been argued that it is difficult to see how mounting a defence can be an abuse of process (see M. Teplitsky, “Prior Criminal Convictions: Are They Conclusive Proof? An Arbitrator’s Perspective”, in K. Whitaker et al., eds., Labour Arbitration Yearbook 2001-2002 (2002), vol. I, 279). A common justification for the doctrine of res judicata is that a party should not be twice vexed in the same cause, that is, the party should not be burdened with having to relitigate the same issue (Watson, supra, at p. 633). Of course, a defendant may be quite pleased to have another opportunity to litigate an issue originally decided against him. A proper focus on the process, rather than on the interests of a party, will reveal why relitigation should not be permitted in such a case.
51 Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.
52 In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80.
53 The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51; Franco, supra, at para. 55).
[32] The reason that abuse of process is the doctrine that is most applicable to this case has to do with the circumstances of this case. The litigation in this case is complex. Permitting issues that are central to one part of the case to be re‑litigated in another related proceeding by a party that lost the issue the first time is the essence of an abuse of process. Similarly, allowing a party to continually change their position on an issue during the course of litigation depending on what motion was before the Court would also be an abuse of process. There must be finality in litigation.
[33] In this case, the analysis starts with the contempt finding that was made against Mr. Wilson and the sentence that Price J. imposed. Mr. Wilson was found in contempt for failing to comply with Court orders and, as a result, lost his right to participate in the family law litigation. As I have noted above, the marriage contract is central to the findings that have been made in the family law litigation. The marriage contract was not binding, inter alia, because it concerned property that had previously been disposed of.
[34] It would be an abuse of process for the Court to determine that Mr. Wilson owed payments as a result of the family law litigation and then permit Mr. Wilson to challenge those payments in a related civil proceeding. This abuse of process would be made worse by the fact that Mr. Wilson was precluded from participating in the family law litigation. Permitting Mr. Wilson to use the marriage contract in civil proceedings to challenge the outcome of the family law proceedings would emasculate the sentence that was imposed on Mr. Wilson in the contempt proceeding.
[35] I should deal particularly with the observation that Arbour J. makes in paragraph 53 of Toronto. It is possible to argue that the stakes in the preservation order hearing before Price J. were too minor to generate a full and robust response. Nothing changed hands and no final order was made. I reject this argument for two reasons:
a) The stakes have been high throughout this litigation, and the preservation order was vigorously contested.
b) The issue of the marriage contract was centrally engaged by the decision Price J. had to render on the preservation order.
[36] Finally, in reply submissions Mr. Wilson’s counsel states that he “requests an immediate hearing” on this issue. My reasons of August 19th, 2020 made it clear that I would be deciding this issue based on the written submissions. Having reviewed those submissions, I am of the view that no hearing is necessary.
[37] For the foregoing reasons, the finding of Price J. that the matrimonial contract is of no force or effect continues to apply in all of the litigation between Mr. Wilson and Ms. Fatahi-Ghandehari.
The Next Steps
a) The Outstanding Claims
[38] In my endorsement of August 19th, 2020, I directed the parties to provide me with a list of all of the outstanding actions between the parties. I also advised the parties that I would be addressing the issues of the marriage contract and the undefended trial first. I have addressed those issues.
[39] I have also now had an opportunity to review the list of outstanding actions that the parties have in this matter, and they are as follows:
a) CV 118/15 – this is an action that was brought in Milton by Stewart Wilson against a number of parties. The parties disagree on the status of this matter.
b) CV 2021/16 – this is an action that was brought in Milton by Ms. Fatahi-Ghandehari to recover funds that were used to purchase particular assets allegedly owned by Mr. Wilson and a corporate entity.
c) CV 985/17 – this is a Milton action that was brought by Mr. Wilson seeking damages against Ms. Fatahi-Ghandehari from an allegedly false criminal complaint lodged by Ms. Fatahi-Ghandehari with the Police.
d) CV-17-0050-00 – this is a Brampton action brought by Ms. Fatahi-Ghandehari on the basis that funds were allegedly stolen by Mr. Wilson and transferred to various defendants.
e) CV-19-628418 – this is an action commenced in Toronto against Mr. Braidmore and various other parties. It was transferred to Brampton and placed under the umbrella of the cases that I am managing by way of an Order on March 6th, 2020.
[40] I understand that there was a bankruptcy proceeding involving Mr. Wilson. I also understand that this proceeding was concluded. However, I will be looking for confirmation of that fact from the parties at the next appearance.
[41] There is also an action brought by Mr. Wilson against the law firm, Abrahams LLP, that provides assistance to Ms. Fatahi-Ghandehari. This action is covered by Court File No 161/17. It is mentioned in Mr. Wilson’s list of outstanding actions, but it is not mentioned in Ms. Fatahi-Ghandehari’s list of actions. We will discuss this action at our next appearance.
[42] Finally, the parties are to be prepared to file all of the pleadings in all of the actions that are active at our next appearance, as I do not have access to the Court files during the current closure. I will provide the parties with directions as to how to file these pleadings at the case conference. They are not to be filed beforehand.
[43] The matrimonial action has been determined by way of my reasons of May 19th, 2021. The remaining actions are outstanding. However, those actions must now be considered in light of the orders that I have made in the matrimonial action. Specifically, Mr. Wilson now has a significant debt owing to Ms. Fatahi-Ghandehari.
[44] In addition, I understand that a bailiff is holding an asset, which is one of the disputed cars in this case. The bailiff has been peripherally involved in the litigation. He is requested to either attend in person or send counsel to the next appearance to ensure that the issue of the property in his possession can be dealt with at that time.
[45] Based on the foregoing, the next step in this matter is to schedule a case conference in this matter. That case conference will be by Zoom. Based on my reasons so far, the case conference will have to address at least the following issues:
a) What should be done with the asset currently being held by the Bailiff?
b) What should be done with each of the outstanding actions?
c) How does my judgment in the family law case affect the other actions?
d) What is the effect, if any, of the alleged transfer of some of the choses in action to Elizabeth Wilson from Stewart Wilson?
e) What should be done with the preservation Orders issued by Price J. against various parties?
[46] I am available at 9:00 a.m. on June 2nd, 3rd, 4th 8th or 9th, 2021 for a one‑hour case conference in this matter. Counsel and the parties are to advise by return e-mail as to their availability on these dates. I will then choose a date.
[47] I remind parties that they cannot commence or continue any action, proceeding, application or other legal proceeding in relation to these matters (other than an appeal) without my leave. Similarly, no party may bring any motion for any relief on any matter relating to or arising from these actions without my leave. In particular, the parties are reminded that the Orders I made in the family law proceeding respecting the CPL that I removed from Ms. Fatahi-Ghandehari’s property and the preservation order that I placed on the property where legal title was held by Ms. Elizabeth Wilson must come back before me.
[48] In addition, there is the issue of outstanding costs orders that Mr. Wilson has not paid, to which I now turn.
b) Costs
[49] When Daley R.S.J. took over the case management of this matter back in 2019, he invited submissions from both parties on the outstanding costs in this matter. As I have described above, Daley R.S.J. elected supernumerary status in March of 2020 and designated me as the case management judge in March of 2020.
[50] In my August 19th, 2020 endorsement, I also reviewed the submissions from Mr. Wilson’s counsel on the issue of costs. As I noted at the time, Mr. Wilson was claiming impecuniosity as well as other grounds for non-payment of costs. This is not the first time that Mr. Wilson has raised a claim of impecuniosity and it is not the first time that his claim of impecuniosity was rejected. I also rejected Mr. Wilson’s other claims and advised that the costs remain payable. I encouraged Mr. Wilson to pay those costs.
[51] The costs remain payable, and the previous decisions on costs will not be revisited by this Court. However, there may be a threshold issue of whether Mr. Wilson may participate in any litigation in relation to these events as a result of his non-payment of costs. This issue will also be addressed at the next case conference. To that end, I would direct the parties’ attention to Rule 60.12 of the Rules of Civil Procedure.
[52] I also note Mr. Robson’s submission, in his letter of September 15th, 2020, that costs should be paid into Court because of the alleged fraud of Ms. Fatahi-Ghandehari. This submission ignores the fact that my decision of August 19th, 2020 addressed the issue of whether the costs should be paid because of Ms. Fatahi-Ghandehari’s alleged fraud. I have previously rejected Mr. Robson’s submission in this regard. The submission remains rejected and I am not reconsidering the issue. I would only add that the fact that Mr. Robson has raised the issue again despite the fact that I have disposed of it is of concern to me. This case has been made longer and more complex by attempts to re-litigate matters that have already been determined.
c) Urgency
[53] In my endorsement on August 19th, 2019, I found that there was no urgency in the matters that had been raised by Ms. Fatahi-Ghandehari. I invited submissions on whether matters of urgency were raised by the concerns between the Wilson parties and the Braidmore parties. On receipt of those submissions last fall, I determined that there was no urgency in the issues raised by the Wilson parties. I will set out my reasons for that decision below.
[54] First, the issues in this case have all been going on for a very long time. At this point, it is difficult to see how any party could raise an issue of urgency over matters that had been before the Courts for six years. While I acknowledge that Mr. Wilson’s litigation with Mr. Braidmore has only been going on for two years, the same principle applies to that part of the litigation.
[55] Second, all of the issues in this case appear to be inter-related. For example, the ownership of the cars in Mr. Braidmore’s possession is related not only to the litigation between the Wilson parties and the Braidmore parties, but to the preservation order granted in the Family Law action. Since this case has become, to quote the Court of Appeal (2018 ONCA 728), a “procedural morass”, it is important to litigate it in an orderly way.
[56] Third, this case has consumed considerable court resources. I am concerned that an “urgent” motion to address part of this case would simply consume more Court resources without resolving the underlying issues in this case.
[57] Finally, the submissions made by Mr. Wilson about the harm that would come if an urgent motion was not heard appear to me to be speculative at best. While I acknowledge that I did not ask for Affidavits, I did not receive much in the way of supporting documentation from the Wilson parties about any alleged irreparable harm that they were suffering.
[58] For these reasons, I determined that I would not hear an urgent motion on this matter. If the circumstances have changed, I will consider this issue at the case conference.
d) Recent Communications
[59] On February 9th, 2021, after the undefended trial had been scheduled but before it had taken place, I received an unsolicited communication from Mr. Robson. That letter stated as follows:
I am compelled to write this letter in an effort to advise this Court of ongoing proceedings that fundamentally impact your upcoming decision as case-management judge.
Many of the parties herein, including the Respondent, Applicant, Mr. Watson, Mr. Siddiqui, and me are currently involved in a Law Society Tribunal matter scheduled to be heard February 11 and 12, 2021.
The Law Society Tribunal decision to be released concerns evidence that directly correlates to many of the issues and proceedings before yourself. It is my respectful view that the release of your decision should be held back until the Law Society Tribunal matters are dealt with and decision rendered.
I trust the foregoing is satisfactory.
[60] I received a response to this letter from both Mr. Siddiqui, who has been acting as agent for Ms. Fatahi-Ghandehari on this action and Ms. Fatahi-Ghandehari herself. Both opposed Mr. Robson’s position that my decisions should be held back until the Law Society has made its decision. Both took the position that the disciplinary proceedings against Mr. Robson were irrelevant to the issues I had to determine.
[61] I agree with the submissions of Mr. Siddiqui and Ms. Fatahi-Ghandehari on this point. The jurisdiction of the Law Society of Ontario concerns the conduct of counsel. The decisions I have to make in this case concern the litigation and the issues between the parties. In the absence of any explanation as to how the law society proceeding is an impediment to the decisions I have to make in this case, I decline to wait for the Law Society of Ontario to make its decisions.
[62] There are two other observations that should be made about this correspondence. First, I have addressed this correspondence in the context of this decision, rather than the decision on the family law issues as neither Mr. Robson nor his client are entitled to make any submissions whatsoever on the undefended family law trial.
[63] Second, I have previously expressed a concern to both parties about the receipt of unsolicited communications from them. I provided them with a direction in my August 19th, 2020 endorsement. It reads as follows:
The parties are limited to responding to the directions that I have provided. I have not invited submissions on any other point, and I am not prepared to accept submissions on any other point. TO BE CLEAR, an attempt to make submissions on any other points, or to provide unsolicited submissions will be a matter of contempt, and may be addressed through contempt proceedings at the conclusion of the case management process. No exceptions to this rule should be necessary, as I have permitted the parties to identify (without argument or elaboration at this stage) any other issues that they believe should be addressed. Those issues will be addressed in an orderly way.
I do not make this Order lightly. A significant part of the reason I have made this order relates back to the delays in providing this endorsement. I have found that the material in this case is very complex, and has been made more complex by the procedures that have been adopted in this case. I make no judgment (at this point) as to where the responsibility for what I view as a needless complexity lies. That is a matter for costs and, perhaps, other sanctions at the appropriate time. At this point, however, I have an obligation to ensure that the issues in this case are litigated in a fair and efficient way. In order to do that, submissions must be provided in an orderly manner.
Although I am not making any judgment at this point as to where the responsibility for what I view as needless complexity lies, I do wish to draw Mr. Robson’s attention to a specific point. Ms. Fatahi-Ghanderhari telephoned my judicial assistant on August 7th, 2020 asking for an update on the e-mail I had sent on June 2nd, 2020. My assistant’s e-mail of June 2nd, 2020 indicated that I expected to have a decision out in the first part of June. Ms. Fatahi-Ghanderhari’s telephone request to Ms. Stafford was a reasonable request, although I am of the view that it should have been put in writing. Ms. Fatahi-Ghanderhari is directed that no communications with my judicial assistant are required or permitted by telephone and that all communications must be copied to the other side.
In addition, however, Mr. Robson’s e-mail of August 7th, 2020 is of considerable concern to me. In that e-mail, Mr. Robson argued that this action had a material connection to the Bankruptcy/Commercial court in Toronto and should be transferred back to Toronto. Mr. Robson’s submissions were uninvited. Indeed, I view Mr. Robson’s submissions as being in contravention of the direction provided by my judicial assistant on June 2nd, 2020 that “until His Honour provides further directions, no further communications from any party are either required or permitted.” It is possible that Mr. Robson did not intend to breach my Order of June 2nd, 2020, and it is also possible that he was not aware that it was my order.
I would remind Mr. Robson of this order, and advise him that any future breaches of this Order will be viewed as deliberate breaches that could attract a finding of contempt.
[64] It is possible that Mr. Robson thought that his February 9th, 2021 correspondence complied with my Order regarding unsolicited correspondence. It is also arguable that it is not in compliance, although I do not intend to decide that question. I simply remind the parties of my previous directions and confirm that they will be enforced. I would also remind Mr. Robson specifically that this is the second occasion on which I have advised him that further unsolicited communications could result in a contempt finding.
[65] To that end, I note that at this point the next step is the scheduling of a case conference. The parties are only permitted to contact my judicial assistant for the purposes of providing their availability for the dates I have offered. Any other communication will be viewed as a matter of contempt.
[66] At paragraph 45, I identify issues that need to be addressed at the case conference. Based on the remainder of my reasons, there are some additional issues that arise. Therefore, the complete list of issues to be addressed at the case conference are as follows:
a) Whether Mr. Wilson should be permitted to participate in any of these actions any further as a result of his ongoing failure to pay outstanding costs orders.
b) What should be done with the asset currently being held by the Bailiff?
c) What should be done with each of the outstanding actions?
d) How does my judgment in the family law case affect the other actions?
e) What is the effect, if any, of the alleged transfer of some of the choses in action to Elizabeth Wilson from Stewart Wilson?
f) What should be done with the preservation Orders issued by Price J. against various parties?
g) Is there any basis for addressing any of the outstanding issues on an urgent basis?
[67] If any party wishes to raise an additional issue, they may do so at the case conference. My direction respecting no communications applies to parties who wish to raise an additional issue. I do not expect to receive any communications on additional issues in advance of the case conference.
[68] There is also the fact that I have permitted the judgment in the family law matter to be registered against the property at 9860 Highway 20, Smithville, Ontario. At the next hearing date, I will consider submissions from parties other than Mr. Wilson as to whether that Order should continue and/or whether there are other steps that should be taken to address the beneficial ownership of that property.
[69] For clarity, and as I have already mentioned, no party involved in this litigation (including Ms. Elizabeth Wilson) may bring a motion before any other judge to set aside the interim preservation order that I have made. Further, all parties are reminded that no proceeding in respect of the issues in this litigation may be brought before any other judge of this Court.
Conclusion
[70] For the foregoing reasons, I am ordering as follows:
a) There is no basis for any variation in Price J.’s conclusion that the marriage contract between Ms. Fatahi-Ghandehari and Mr. Wilson was of no force or effect.
b) A further case conference will be held in this matter at 9:00 a.m. on one of June 2nd, 3rd, 4th 8th or 9th, 2021 for one hour. Counsel (and Ms. Fatahi-Ghandehari) may, by return e-mail, advise my judicial assistant at karen.bunbury@ontario.ca as to their availability.
c) The issues at paragraph 66 are the agenda for the case conference. Any party who wishes to raise additional issues may do so at the case conference.
d) No party may communicate with my judicial assistant on any issue other than their availability for the dates set out in paragraph (b). Any communications on any other issue will be viewed as a matter of contempt.
e) Any request or motion for a variation to the Orders respecting the CPL and the registration of the family law judgment on the title of 9860 Highway 20, Smithville Ontario must be brought before me.
[71] The costs of the submissions on the matrimonial contract issue will be addressed at the next case conference.
LEMAY J
Released: May 26, 2021
COURT FILE NO.: FS-15-83320
DATE: 2021 05 26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sara Fatahi-Ghandehari
Applicant
- and -
Stewart Wilson
Respondent
REASONS FOR JUDGMENT
LEMAY J
Released: May 26, 2021