DATE: 2022 04 12
CORRECTED: 2022 04 19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THERESA YOGARANIE PAULPILLAI in her capacity as the ESTATE TRUSTEE FOR THE ESTATE OF RICHMOND GABRIEL PAULPILLAI, THERESA YOGARANIE PAULPILLAI and MANEHARRAN PAULPILLAI
Edwin G. Upenieks and Jonah Waxman, for the Applicants
Applicants
- and -
JOSHUA AKANNI YUSUF, MEERC INC., ALL SAINTS UNIVERSITY LIMITED, ALL SAINTS UNIVERSITY SCHOOL OF MEDICINE LIMITED and MEDICAL EDUCATION EXAMINATION RESOURCE CENTER
Osborne G. Barnwell, for the Respondents
Respondents
John Russo and Monty Dhaliwal, for the non-party, BDO Canada Limited
HEARD: In writing
CASE MANAGEMENT ENDORSEMENT
CORRECTION NOTICE
Typographical corrections to be made at paras. [9], [17] and [19].
[9] The word "applicant's" should read "applicants".
[17] This paragraph should conclude as follows: ".....have little chance of success should not be allowed to proceed."
[19] The case citation at the conclusion of this paragraph should read as follows: "671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [1998] O.J. No. 4018; 2001 SCC 59, [2001] 2 SCR 983 (SCC)."
Daley J.
BACKGROUND:
[1] This matter came before me as a case management judge, as assigned pursuant to rule 37.15 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. This proceeding commenced as an application however it was converted to an action.
[2] Pursuant to the order of Fowler Byrne J. of February 6, 2020 (the “Order”), among other forms of relief and court directions, BDO Canada Limited was appointed as a court Monitor as set forth at paragraph [94] (b) of the Order which provides as follows:
[94] (b) BDO is appointed as a Monitor, and officer of this Court to monitor the business operations and financial affairs of MEERC Inc., the Medical Education Examination Resource Centre, All Saints University Limited, All Saints University School of Medicine Limited and the American University of St. Vincent (“the Corporate Respondents”).
[3] This matter has its origins in a dispute related to the ownership and management of the businesses referred to as the Corporate Respondents.
[4] Following the death of one of the individual partners in the Corporate Respondents the parties have been unable to resolve disputes as to the ownership and management of the Corporate Respondents.
[5] Richmond Gabriel Paulpillai (“Richmond”), now deceased, and represented by his wife, the applicant Theresa Yogaranie Paulpillai ,as estate trustee, was a director and shareholder in the Corporate Respondents.
[6] The respondent Joshua Akanni Yusuf (“Yusuf”) was a partner with Richmond in the ownership and operation of the Corporate Respondents, including two medical schools.
[7] In accordance with the terms of the Order, BDO has endeavored to carry out its duties and responsibilities as established by the court, however it has sought to bring a motion for directions and several forms of relief related to its role as Monitor of the medical schools in question and the related businesses including the Corporate Respondents. That motion is returnable before me on April 27, 2022.
[8] A case management conference was held before me on February 15, 2022, involving all parties, as well as the non-party BDO, and during that conference, counsel for the respondents sought leave of the court to bring a motion whereby they will seek to vary the terms of the Order pursuant to rule 59.06 (2) (a) and (d) of the Rules of Civil Procedure.
[9] Although the respondents have taken steps unsuccessfully, to appeal from the Order, as detailed below, they were granted permission to deliver to me and counsel for the applicants and BDO a draft of the respondents’ proposed motion so that I could consider the motion and determine if it was a proper motion and whether it was in the interests of justice that the respondents be granted leave to proceed with that motion prior to the return of the BDO motion on April 27, 2022.
[10] In accordance with my order, counsel for the respondents delivered a draft proposed motion entitled Moving Party Legal & Factual Framework – in Support of Motion to Vary, on or about March 14, 2022.
[11] On or about March 22, 2022, counsel for the applicants delivered submissions opposing the respondents’ request for leave to bring the proposed motion. Counsel for BDO did not file any submissions given its status as a non-party.
[12] The respondents’ proposed motion sought to set aside or vary the Order pursuant to rule 59.06 (2).
[13] Having considered the proposed draft motion and supporting affidavit evidence, as well as the written submissions filed by counsel for the applicants and the respondents , I have concluded that the respondents have failed to satisfy the requirements of rule 59.06 (2)(a) and (d), and furthermore I have concluded that granting the respondents leave to proceed with the motion would not be in the interests of justice when considering the likelihood of success and the history of motions and appeals relating to the same issues at stake in the proposed motion.
Legal Framework:
[14] The authority provided to a case management judge, presiding in a judicial centre not covered by the terms of rule 77, which includes the forum in which this matter is proceeding, is found in rule 37.15 (1) which reads as follows:
37.15 (1) Where a proceeding involves complicated issues or where there are two or more proceedings that involve similar issues, the Chief Justice or Associate Chief Justice of the Superior Court of Justice, a regional senior judge of the Superior Court of Justice or a judge designated by any of them may direct that all motions in the proceeding or proceedings be heard by a particular judge, and rule 37.03 (where motions to be brought) does not apply to those motions.
[15] In carrying out the overall responsibilities of case management, the assigned case management judge should ensure that the case is managed fairly, effectively, and efficiently. Although these hallmarks of proper case management were recently considered by the Supreme Court of Canada in the criminal decision of R. v. Samaniego, 2022 SCC 9 – they have equal application to the proper management of civil actions.
[16] Included in the jurisdiction of a case management judge is a duty to ensure that only motions that are properly grounded are allowed to proceed, particularly where the issues at stake on a motion have been thoroughly adjudicated during the course of the action at several levels of the court, including appellate courts: Trade Capital Finance Corp. v. Cook, 2017 ONSC 3606; Abrams v. Abrams, 2010 ONSC 2703; Sims v. Zaitlen, 2017 ONSC 2501.
[17] Furthermore, in vetting proposed motions during case management, the court must consider the prospects of success if the motions were allowed to proceed. Motions that are frivolous, not properly grounded in the history of the litigation or have been adjudicated previously and have little chance of success should not be allowed to proceed.
[18] The respondents on their proposed motion seek to set aside or vary the Order pursuant to rule 59.06 (2) (a) and (d), which read as follows:
(2) A party who seeks to,
(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;
(b) suspend the operation of an order;
(c) carry an order into operation; or
(d) obtain other relief than that originally awarded,
may make a motion in the proceeding for the relief claimed.
[19] Motions brought pursuant to Rule 59.06 (2) (a) to revise or set aside an order because of the discovery of fresh evidence require that the fresh evidence must not have been discoverable or available at the time of the original hearing and it must be of a nature that it would probably have changed the result: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [1998] O.J. No. 4018; 2001 SCC 59, [2001] 2 SCR 983 (SCC).
[20] In considering a motion pursuant to rule 59.06 (2)(a) the test for determining whether an order should be set aside on the basis of subsequently discovered facts the following must be considered: (1) whether the moving party has shown that the new evidence could not of been discovered by the exercise of reasonable diligence; and (2) that take into account (a) the cogency of the new evidence, (b) any delay in moving to set aside the order, and (c) any prejudice to parties or persons who acted in reliance on the judgement, it is to make an exception to the rule that judgments are final: Tsaoussis (Litigation Guardian of) v. Baetz, 1998 CanLII 5454 (ON CA), [1998] O.J. No. 3516 (Ont. C. A.).
[21] A motion for relief under rule 59.06 may be dismissed on the grounds of the party’s delay in bringing the motion: Saviro International v. Cadillac Gage Co., [1992] O.J. No. 1629, aff’d [1993] O.J. No. 4125 (Ont.C.A.).
Analysis:
[22] The court proceedings in this application have been long and complex and the following is a summary of the notable events:
(a) February 6, 2020 – Order of Justice Fowler Byrne;
(b) October 19, 2020 – Court of Appeal quashes respondents’ motion for leave to appeal on the basis that the proper jurisdiction to appeal the Order rests with the Divisional Court;
(d) January 29, 2021 – Divisional Court dismisses motion for leave to appeal the Order;
(e) March 10, 2021 – Court of Appeal dismisses respondents’ motion for reconsideration of Court of Appeal decision of October 19, 2020;
(f) June 21, 2021 – Court of Appeal dismisses respondents’ motion for leave to appeal Divisional Court decision of June 29, 2021;
(g) February 24, 2022 – Supreme Court of Canada dismisses respondents’ application for leave to appeal the Court of Appeal decision of June 21, 2021.
[23] On their request for leave to proceed with a motion to set aside or vary the Order, it is asserted on behalf of the respondents that the basis for the proposed motion arises from the fact that the court in St. Vincent and the Grenadines (“SVG”) vacated from its records the Order, which had been registered in that court and that decision came to the attention of counsel for the respondents in August 2020. It is urged on behalf of the respondents that the SVG court order constitutes evidence that was received after the Order and therefore this formed a proper basis for proceeding with the proposed motion.
[24] Despite the SVG court order having come to the attention of counsel for the respondents in August 2020, no steps were taken by the respondents of the type being advanced in the proposed motion, namely, to set aside or vary the Order. There is no evidence that the respondents brought SVG court order to the attention of any court in the series of leave applications and appeals that were brought, as outlined above, including to the Supreme Court of Canada. In my view all the proceedings instituted by the respondents after the Order constitute fresh steps taken by them, the results of which have been implicitly relied upon by the applicants in reasonably concluding finality in the litigation process as it relates to the respondents' claims.
[25] Furthermore, there is no evidence explaining the extraordinary delay in seeking to bring the proposed motion. For strategic or other reasons, the respondents simply sat on the information and took no steps to proceed with the proposed motion, regardless of its merits.
[26] The proposed “new evidence” relating to the SVG court order is not truly new evidence in that the order in question arose after the determination of the matter by Fowler Byrne J. and furthermore there is nothing flowing from the SVG court order that would have likely changed the result as provided for in the Order.
[27] The scope of rule 59.06 was thoroughly reviewed in the court’s decision in Peoples Trust Company v. Atas, 2018 ONSC 58, where the court made the following observations at para 14:
And there is no more fundamental feature to such a system than its finality: however long and elaborate the process may be, however many appeals may be available, once the process has run its course, the dispute is at an end. The matter is decided. Whether parties agree with the results or not, they have become beyond dispute or debate.
[28] Rule 59.06 is not an invitation to re-argue cases endlessly or an invitation to raise new issues after a decision has been rendered. The rule provides a mechanism for re-opening a hearing under very strict conditions: Berge v. College of Audiologists and Speech Language Pathologists of Ontario, 2019 ONSC 3351, at para 35.
[29] On considering the proposed motion and the record submitted on behalf of the respondents, it is clear that the motion is simply another attempt to relitigate the issues that have been fully adjudicated and therefore in my view the proposed motion constitutes an abuse of this court's process.
[30] There is one further matter which I must address, although it is not determinative of the outcome.
[31] The respondents are in breach of several court orders requiring them to pay costs totaling $118,500. The breach of the court orders is not addressed by the respondents in their submissions, however standing alone, apart from the other reasons outlined above, this certainly undermines the good faith basis upon which the respondents are now seeking to bring a further motion.
[32] For the reasons outlined, I have concluded that the respondents are not entitled to have leave to proceed with the proposed motion and therefore their request is denied.
[33] Counsel for the applicants shall serve and file submissions as to costs of no longer than two pages, along with a costs outline within 15 days from the date of release of this decision. Counsel for the respondents shall serve and file similar submissions within 15 days thereafter. No reply submissions are to be delivered.
Daley J.
Released: April 12, 2022
Corrected: April 19, 2022
DATE: 2022 04 12
CORRECTED: 2022 04 19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THERESA YOGARANIE PAULPILLAI in her capacity as the ESTATE TRUSTEE FOR THE ESTATE OF RICHMOND GABRIEL PAULPILLAI, THERESA YOGARANIE PAULPILLAI and MANEHARRAN PAULPILLAI
Applicants
- and –
JOSHUA AKANNI YUSUF, MEERC INC., ALL SAINTS UNIVERSITY LIMITED, ALL SAINTS UNIVERSITY SCHOOL OF MEDICINE LIMITED and MEDICAL EDUCATION EXAMINATION RESOURCE CENTER
Respondents
CASE MANAGEMENT ENDORSEMENT
Daley J.
Released: April 12, 2022
Corrected: April 19, 2022