COURT FILE NO.: FS-15-83320
DATE: 2021 06 15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sara Fatahi-Ghandehari
Applicant
- and -
Stewart Wilson
Respondent
COUNSEL: Self-Represented, assisted by S. Siddiqui, for the Applicant P. Robson for the Respondent R. Watson for the Braidmore parties
HEARD: June 8, 2021
REASONS FOR DECISION
LEMAY J
[1] I am the case management judge for the above noted action and for a series of other related actions. Those actions are 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 style of cause set out above is for the family law action. However, this endorsement covers all of the actions that I am case managing. The style of cause will be addressed at the next hearing.
[2] In my reasons of May 26th, 2021 (2021 ONSC 3708), I set out an agenda of issues that needed to be addressed between the parties (see paragraph 66). In the hearing last Tuesday, I also canvassed with the parties whether there were any other issues that should be dealt with at this time.
[3] In the sections that follow, I will set out my directions on:
a) The sale of the cars currently being held by the bailiff.
b) The Rule 60 motion.
c) The other issues the parties wished to address.
d) The costs from the motion in respect of the marriage contract.
[4] At the outset, I should note that one additional issue should be addressed before the next hearing date. In my endorsement of May 26th, 2021, I advised the parties that they should be prepared to provide me with copies of all the pleadings in all of the actions at the next case conference. We did not discuss that issue at the case conference. The parties are directed to provide my judicial assistant with one e-mail attaching all their pleadings for all of the actions set out in paragraph 1. This communication is an exception to my blanket prohibition on communications by the parties to me between case conferences.
The Property Held by the Bailiff
[5] At some point in this litigation, the bailiff, Mr. Joseph Siracusa, came into possession of two cars, a Ferrari and a Charger. These are cars that were provided to the bailiff as part of a preservation order issued by Price J.
[6] During my discussions with the parties, it became clear that the parties are ad idem that the cars should be sold. The question is what process should be adopted to sell those cars. In my view, it is a process that must maximize the value of the cars. The Court has a responsibility to all parties to ensure that happens.
[7] I also confirmed that there was no dispute that the sale proceeds should be paid into Court. Mr. Siracusa may have a claim for the costs of the storage of the vehicles. That claim will be addressed once the vehicles are sold.
[8] To that end, I provided the parties with the following directions:
a) Other than the lien that Mr. Siracusa holds, only Mr. Wilson and Ms. Fatahi-Ghandehari have an interest in the cars.
b) Mr. Siracusa shall proceed to solicit bids for the cars from prospective buyers.
c) A prospective buyer may advise Mr. Siracusa that they wish to perform due diligence by inspecting the car. Both Mr. Wilson and Ms. Fatahi-Ghandehari are to approve of any proposed due diligence. If they cannot agree, I am to be advised through my judicial assistant of any issues in that regard and I will determine how to address those issues.
d) All bids for the automobiles, including the identity of the bidders, shall be produced by Mr. Siracusa promptly after receipt to both Mr. Wilson and Ms. Fatahi-Ghandehari at the same time.
e) Mr. Braidmore is permitted to bid on the automobiles.
f) The sale shall not be completed without either the agreement of Mr. Wilson and Ms. Fatahi-Ghandehari or an order from me.
g) All proceeds from the sale shall be paid into court immediately upon receipt of funds.
[9] The bidding process will be revisited at the appearance on July 28th, 2021 to ensure that it is proceeding smoothly. As a result, I am requesting Mr. Siracusa to attend that appearance.
The Rule 60 Motion
[10] In my endorsement of May 27th, 2021, I invited the parties to consider whether Mr. Wilson, as a threshold matter, should be entitled to participate in these proceedings any further because of the costs awards made against him that he has not paid.
[11] Mr. Siddiqui, on behalf of Ms. Fatahi-Ghandehari, suggested that the Court had an inherent jurisdiction to enforce Rule 60.12 and that I should do so in essence on the materials before me. I rejected that suggestion. Both sides are entitled to have a hearing on this issue and both sides are entitled to place materials before me for that hearing before I decide on the issue.
[12] However, I am of the view that the Rule 60.12 issue is a serious one and it needs to be litigated first. It involves only Mr. Wilson and Ms. Fatahi-Ghandehari, they are the only parties participating in the issue and the only ones who are entitled to file materials.
[13] To that end, I directed a timetable for the completion of motion materials on this matter:
a) Any Affidavits or other materials that either party wishes to file must be served and filed by no later than June 30th, 2021.
b) Any responding Affidavits or other materials are to be served and filed by July 21st, 2021.
c) The matter is to be spoken to before me on July 28th, 2021 at 9:30.
d) Factums and casebooks must be served and filed by August 16th, 2021.
e) The hearing of the issue will take place on September 8th, 2021 at 10:00 a.m. Each side is strictly limited to forty-five (45) minutes of oral argument.
[14] For the assistance of the parties, I will not be considering any materials other than my own endorsements or decisions that are not included in the motion records. It would be preferable if a notice of motion came from Ms. Fatahi-Ghandehari in the materials as, in the absence of a notice of motion, there may be arguments as to my jurisdiction to consider the issue.
[15] I should note for the record (as I did at the hearing) that I view this as a legal issue rather than a factual one. To that end, it would not surprise me to see motion records that contain an Affidavit from a solicitor's assistant. Whether I am prepared to permit cross-examinations is an issue that we will canvass at the July 28th, 2021 appearance.
[16] Finally, this issue has to be decided before the litigation can continue. Depending on the disposition of the issue, Mr. Wilson may not be entitled to participate in any litigation against Ms. Fatahi-Ghandehari. Once the issue has been determined and the cars have been sold by the bailiff, we will then reassess what steps should be taken next.
Other Issues
[17] In addition to the issue agenda set out at paragraph 66 of my May 26th, 2021 endorsement, I invited the parties to identify any additional issues that they wished me to consider. Mr. Robson identified four different issues:
a) The potential for a motion under Rule 59 to set aside my judgment in the family law matter on the basis of fraud.
b) A request to immediately put the CPL back onto Ms. Fatahi-Ghandehari's property on Delfi Drive.
c) An order for production of documents from Ms. Fatahi-Ghandehari.
d) An order that Ms. Fatahi-Ghandehari not contact Mr. Wilson.
[18] I am not prepared to consider any of these issues at this time. At this point, the question in the Rule 60.12 proceeding is whether Mr. Wilson should be entitled to any relief, procedural or substantive, in respect of these actions because of his failure to pay the previous costs awards. Any further requests for relief from Mr. Wilson must await the outcome of that proceeding.
[19] In addition, I note that the request to immediately put the CPL back on Ms. Fatahi-Ghandehari's property is based on Mr. Wilson's assertion of a fraud of approximately $1 million dollars on the part of Ms. Fatahi-Ghandehari. I am not addressing the merits of that claim at this point or the issue of whether that claim has already been adjudicated. However, I would note that Ms. Fatahi-Ghandehari has judgments from this Court well in excess of the amount allegedly lost in the alleged fraud. As a result, I see no urgency to addressing the CPL issue at this stage.
Costs From The Marriage Contract Issue
[20] The issue of the costs from the written submissions that the parties provided on the marriage contract remain outstanding. I determined that it was appropriate to deal with those submissions in writing. The following timetable was set:
a) Ms. Fatahi-Ghandehari's costs submissions must be served and filed by no later than June 22nd, 2021.
b) Mr. Wilson's reply submissions must be served by July 6th, 2021.
c) Both sets of costs submissions are to be no more than three double spaced pages exclusive of bills of costs, offers to settle and case-law.
[21] Those submissions must be filed with both the Court office and with my judicial assistant. The filing of those submissions is an exception to my blanket prohibition on communications from the parties to me between case conferences.
Conclusion
[22] Given the contentious nature of this litigation, it is helpful to set out my Orders in one place so that a Court order may be taken out:
a) The parties shall provide my judicial assistant with one e-mail, copied to all other parties, attaching their pleadings for all of the actions listed in paragraph 1.
b) Other than the lien that Mr. Siracusa holds for the storage costs, only Mr. Wilson and Ms. Fatahi-Ghandehari have an interest in the cars.
c) Mr. Siracusa shall proceed to solicit bids for the cars from prospective buyers.
d) A prospective buyer may advise Mr. Siracusa that they wish to perform due diligence by inspecting the car. Both Mr. Wilson and Ms. Fatahi-Ghandehari shall approve of any proposed due diligence. If they cannot agree, I am to be advised through my judicial assistant of any issues in that regard and I will determine how to address those issues.
e) All bids for the automobiles, including the identity of the bidders, shall be produced by Mr. Siracusa promptly after receipt to both Mr. Wilson and Ms. Fatahi-Ghandehari at the same time.
f) Mr. Braidmore is permitted to bid on the automobiles.
g) All proceeds from the sale shall be paid into court immediately upon receipt of funds.
h) Any Affidavits or other materials that either party wishes to file in respect of the Rule 60.12 proceeding shall be served and filed by no later than June 30th, 2021.
i) Any responding Affidavits or other materials in respect of the Rule 60.12 proceeding shall be served and filed by July 21st, 2021.
j) The matter shall be spoken to before me on July 28th, 2021 at 9:30 a.m.
k) Factums and casebooks in respect of the Rule 60.12 proceeding shall be served and filed by August 16th, 2021.
l) The hearing of the Rule 60.12 issue shall take place on September 8th, 2021 at 10:00 a.m. Each side shall be strictly limited to forty-five (45) minutes of oral argument including reply.
m) In respect of the marriage contract submissions, Ms. Fatahi-Ghandehari's costs submissions must be served and filed by no later than June 22nd, 2021.
n) In respect of the marriage contract submissions, Mr. Wilson's reply costs submissions must be served by July 6th, 2021.
o) In respect of the marriage contract submissions, both sets of costs submissions are to be no more than three double spaced pages exclusive of bills of costs, offers to settle and case-law.
p) Other than as described in these Orders, the parties are not to communicate with my judicial assistant on any other matter. Any issues can be raised at the next case conference.
[23] Mr. Siddiqui is asked to prepare the draft order and circulate it to the other parties by e-mail. If the parties consent to the Order, then they may provide a copy of it to my judicial assistant for signature. The provision of the order agreed to as to form and content is an exception to my blanket prohibition on communications from the parties to me between case conferences.
[24] The costs of the case conference are reserved to the appearance on September 8th, 2021.
LEMAY J
Released: June 15, 2021
COURT FILE NO.: FS-15-83320
DATE: 2021 06 15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sara Fatahi-Ghandehari
Applicant
- and -
Stewart Wilson
Respondent
REASONS FOR DECISION
LEMAY J
Released: June 15, 2021