ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-15-83320-0000
DATE: 2022 08 19
BETWEEN:
Sara Fatahi-Ghandehari
Shahzad Siddiqui (Agent), for the Applicant
Applicant
- and -
Stewart Wilson
Self-Represented
Respondent/Plaintiff in CV-22-678972
Law Society of Ontario
Defendant in CV-22-678972
Ian McKellar, for the Law Society of Ontario
HEARD: In Writing
REASONS FOR DECISION
LEMAY J
[1] I am the case management judge in the family law action as well as other actions between Sara Fatahi-Ghandehari and Stewart Wilson and other parties, both personal and corporate. An undefended trial was ordered by Price J. in his September 21st, 2018 decision (2018 ONSC 5579). I heard that undefended trial and released a decision on May 19th, 2021 (see 2021 ONSC 3547). The Respondent in the family law action, Stewart Wilson, was not permitted to participate in the undefended trial.
[2] After I delivered my decision in the undefended trial, I began to consider the remaining outstanding issues in this complex litigation. This decision deals with two of those issues.
[3] First, as part of my consideration of the ongoing litigation, counsel for Mr. Wilson insisted that he should be permitted to bring a motion under Rule 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The grounds for this motion were allegations of fraud on the part of both the Applicant and Mr. Siddiqui, the counsel that has been assisting her.
[4] Rather than permitting a full cross-examination on complete Affidavits, I determined that, as a first step, I should consider whether the Rule 59.06 motion amounts to an abuse of process. Those submissions were completed in March of this year. For reasons that follow, I have determined that the Rule 59.06 motion should not be permitted to proceed because it would be an abuse of process. I have found that the proposed motion would amount to an abuse of process both because the issues have already been determined and because the Respondent, Mr. Wilson, has no prospect of success on the motion.
[5] The second issue is that Mr. Wilson has now brought an action against the Law Society of Ontario (“LSO”) in Toronto (Court File No. CV-22-678972). This action seeks, inter alia, damages and a stay of the regulatory proceedings that have been brought by the LSO against Mr. Paul Robson, who is Mr. Wilson’s counsel in the family law matter and the related litigation. Mr. Robson is also counsel in the new action against the LSO.
[6] Counsel for the LSO and for Ms. Fatahi-Ghandehari support a transfer of this action to Brampton and ask that I case manage it on the basis that the LSO action raises many of the same factual issues as are raised in the litigation between Ms. Fatahi-Ghandehari and Mr. Wilson. Counsel for Mr. Wilson opposes both the transfer request and the request that I case manage the LSO action on the basis that I will not provide Mr. Wilson with a fair hearing, that the prerequisites of Rule 13 have not been met and that there are other actions between Mr. Robson and the LSO that are in Toronto and that this action properly belongs with them.
[7] Having reviewed the submissions of the parties, I have determined that the action brought by Mr. Wilson against the LSO should be transferred to Brampton and case managed by me.
[8] My reasons for both of these determinations follows.
The Rule 59 Motion
[9] I should start by addressing what I am actually deciding on this issue, as there seems to be some confusion between the parties. Ms. Fatahi-Ghandehari argues that Mr. Wilson must prove that he has met the test under Rule 59.06. Counsel for Mr. Wilson argues that the only question that I am determining is whether such a motion would be barred by “rules against re-litigation or abuse of process or the related doctrine of issue estoppel.” My directions to the parties were modestly broader than what Mr. Wilson’s counsel argues but clearly narrower than what Ms. Fatahi-Ghandehari argues.
[10] However, I am of the view that this matter can be determined on the issue of whether permitting this motion to proceed would amount to an abuse of process either because the issues have already been litigated or because Mr. Wilson would have no chance of success on the motion. In essence, I will decide the issue as framed by Mr. Wilson.
[11] In considering the issue of fraud, I note that counsel for Mr. Wilson has raised several allegations of fraud, as follows:
a) That Ms. Fatahi-Ghandehari’s claims of receiving an inheritance are fraudulent.
b) That Ms. Fatahi-Ghandehari was not just an assistant at Mr. Wilson’s company prior to separation, but together with her mother was in complete control of the company.
c) That Ms. Fatahi-Ghandehari defrauded Mr. Wilson’s company of a million dollars more or less.
d) That Ms. Fatahi-Ghandehari did not make any contributions to the purchase of the property located at 1360 Neils Avenue in Burlington. The proceeds from that property ultimately flow to a property currently owned (at least legally) by Ms. Elizabeth Wilson, Mr. Wilson’s mother.
e) That Ms. Fatahi-Ghandehari’s claims that she was assaulted by Mr. Wilson are lies.
[12] The first four allegations are all related to the question of whether Ms. Fatahi-Ghandehari fraudulently claimed an inheritance as the source of her assets during the marriage and I will refer to them all as the fraud or the inheritance fraud. The final allegation is different but is also addressed in the materials that have been previously filed with the Court. Where the issue of the assault arises, I will specifically mention it.
[13] I also note that, in my endorsement released on January 6th, 2022, I directed Mr. Wilson to file all evidence that he had supporting his allegation that a fraud had taken place. The evidence that was actually filed by Mr. Wilson is important in determining whether there is an issue that the Court has genuinely not considered or whether this proposed Rule 59 motion is simply an attempt to re-litigate issues that have already been determined.
[14] In the sections that follow, I will first set out a brief history of this action. I will then provide a general overview of where the parties have joined issue in their pleadings and documents over the issue of fraud. I will then review where other judges have addressed the issue of fraud. Finally, I will consider the issue of abuse of process and the related doctrines and how they apply to this case.
[15] Before addressing these issues, I will address one preliminary matter. Counsel for Mr. Wilson has alleged that Ms. Fatahi-Ghandehari refused to answer questions on fraud during an examination on July 31st, 2021. Counsel argues that I should draw an adverse inference from Ms. Fatahi-Ghandehari’s failure to answer questions about fraud.
[16] I reject this argument for two reasons. First, these questions about fraud were asked in the context of a Rule 60 motion that had been brought by Ms. Fatahi-Ghandehari. Counsel for Mr. Wilson argued that those questions had to be answered before the Rule 60 motion was determined. In my reasons dated November 14th, 2021 (2021 ONSC 7390), I rejected this argument and stated (at para. 48):
[48] As a result, none of the cross-examination questions that Mr. Wilson’s counsel, Mr. Robson, sought to ask that were refused are relevant and none of them need to be answered in order for me to dispose of this motion. Mr. Robson could also argue that there were other questions that he did not get a chance to ask. The problem with this argument is that this motion is focused on Mr. Wilson’s failure to follow Court orders. The alleged fraud is irrelevant to that question as the Orders have all been made and must be complied with even if the alleged fraud could be proved.
[17] It would be unfair to Ms. Fatahi-Ghandehari for me to have upheld her decision not to answer the questions on fraud and to then use her legally justified refusal to answer those questions as the basis for an adverse inference against her. There is no merit to Mr. Wilson’s argument on this point.
[18] Second, the entire point behind Ms. Fatahi-Ghandehari’s positions in this matter are that the issue of any alleged fraud has already been determined by the Courts and that she should not have to respond to questions about an issue that has already been addressed. I accept this submission as well.
a) The History of This Litigation
[19] Ms. Fatahi-Ghandehari and Mr. Wilson met in 2005. They were married on August 12th, 2007 and separated on December 4th, 2014. At the time the parties met, Mr. Wilson ran a business renting exotic cars. Based on the evidence that is in the record, he continues to run this business.
[20] Almost immediately after the separation, the parties began litigating in various claims. A contempt proceeding was initiated by Ms. Fatahi-Ghandehari on July 26th, 2016. The history of the business dealings is detailed in the November 3rd, 2016 decision of Price J. (2016 ONSC 6863).
[21] A key part of the complicated business history is that, at some point around 2009, Mr. Wilson made an assignment into bankruptcy. As a result, at the time the parties separated, the cars were in the possession of a numbered company whose sole shareholder was Ms. Fatahi-Ghandehari’s mother.
[22] By way of an order of Gray J. dated March 3rd, 2015, the cars were found to be the property of Mr. Wilson. Shortly after this Order was made, Mr. Wilson’s Trustee in Bankruptcy secured an Order to have these cars turned over to the Trustee. That order was made by Patillo J. I understand that both the March 2015 Order of Gray J. and the April 2015 Order of Patillo J. were appealed to the Court of Appeal. I understand that these appeals were not successful.
[23] On July 23rd, 2015, an order requiring Mr. Wilson to disclose a substantial amount of documentation was made by Miller J. A subsequent disclosure order was made by Price J. on July 7th, 2016. Mr. Wilson did not comply either disclosure order, which caused Ms. Fatahi-Ghandehari to bring the contempt proceeding. Mr. Wilson was found in contempt by Price J. on October 10th, 2017. A sentencing hearing was held over a number of days during the course of 2018 and the sentence that was imposed on Mr. Wilson was to have his pleadings struck. The matrimonial action was to proceed as an undefended trial. As detailed in my reasons on the undefended trial (2021 ONSC 3547 at paras 19 to 24), Mr. Wilson’s right to appeal either the finding of contempt or the sentence had been exhausted. This finding was confirmed by the Court of Appeal earlier this year (see 2022 ONCA 421 at para. 4).
[24] In the course of the undefended trial, I addressed the issues of whether Ms. Fatahi-Ghandehari had been assaulted as well as reviewing the documentation that I had received in order to arrive at a calculation of Net Family Property. That calculation engaged questions of the parties’ finances, including whether Ms. Fatahi-Ghandehari had received an inheritance from her family.
[25] Although Mr. Wilson was not permitted to participate in the undefended trial, his counsel now argues that I should revisit my decision from that undefended trial and set it aside on the basis that a fraud was committed and “fraud changes everything”. This brings me to the question of whether the issues of the alleged frauds have been raised and/or decided already.
b) Fraud in the Pleadings
[26] Part of the reason for the time that it has taken me to release these reasons is that I had asked the parties to file all the relevant materials. Both sides filed voluminous amounts of materials. Unfortunately, neither party provided me with either a list of the places where fraud was raised in their pleadings or where it was addressed by the Court. As a result, I have conducted my own detailed review of the pleadings, Affidavits and other materials filed by the parties as well as both reported and unreported judicial decisions in this matter.
[27] I do not intend to review every instance where fraud arose either in the pleadings or in the judicial decisions. Suffice it to say that the issue of Ms. Fatahi-Ghandehari’s alleged frauds has been raised by Mr. Wilson on a number of occasions going back to the commencement of this litigation. They have also been the subject of judicial findings on a number of occasions.
[28] First, the issue of fraud was raised by Mr. Wilson in his pleadings as far back as 2015. Some examples of fraud being raised in the pleadings, Affidavits and/or in other places in the initial stages of this litigation are as follows:
a) In an attachment to a Form 10 of Mr. Wilson from June of 2015 he stated that “Ms. Fatahi-Ghandehari has never received large sums of money from family in Iran nor has any money to be declared to Canada customs or tax forms.”
b) An Affidavit of Farnaz Yaghinali dated August 14th, 2015 in which Ms. Yaghinali states that Ms. Fatahi-Ghandehari is a fraudster who had planned with her mother to “weave a web so as to scam Stewart out of all his assets and money…”. I note that Ms. Yaghinali’s allegations are repeated and expanded upon in other Affidavits that were before the Court. These allegations have been part of the Court record for a significant period of time.
c) There are also transcripts of the proceedings before Price J. on the contempt motion. In the course of those proceedings, Ms. Fatahi-Ghandehari was cross-examined about her claim of having received an inheritance on February 6th, 2017. There were further questions on April 27th, 2017.
d) Allegations of fraud were also raised by Mr. Wilson in the related Court action, which is Court File No. 118/15.
[29] As set out below, Price J. has made a couple of very significant determinations about the allegations of fraud in this matter. One of those was made in January of 2018. In the pleadings that led to that determination, there are numerous references to the issues of fraud raised by Mr. Wilson. Those include:
a) In Mr. Wilson’s Affidavit of November 10th, 2017, he advises that the police believed that Ms. Fatahi-Ghandehari was lying to them about the assault that she claimed had taken place.
b) In Mr. Wilson’s Affidavit of December 7th, 2017, he identifies an alleged account from which Ms. Fatahi-Ghandehari’s inheritance came from along with an allegation that the claim of an inheritance was a fiction that Ms. Fatahi-Ghandehari only came up with after she lost the motion in front of Gray J. in March of 2015.
c) Detailed allegations of fraud contained in Mr. Wilson’s Affidavit of December 9th, 2017. These allegations addressed both the issue of Ms. Fatahi-Ghandehari allegedly taking money out of the business and her inheritance. This Affidavit contains a detailed review (with attachments) of the evidence that Mr. Wilson relied upon for both issues.
d) A further detailed series of allegations of fraud contained in Mr. Wilson’s Affidavit of January 5th, 2018. Those allegations include claims that Ms. Fatahi-Ghandehari never received an inheritance, claims that she defrauded Mr. Wilson’s business of over $1 million dollars and claims that she did not pay the amount of money she said she paid into the Delfi property.
[30] Finally, Mr. Wilson was directed to provide all of his evidence in support of his allegations of fraud in this case as part of the material that was to be filed in support of his request for leave to bring a motion under Rule 59. He filed a document brief dated January 28th, 2022, and an accompanying pleadings brief. These briefs had more than 1300 pages of documents in them. However, the only documents in it that have not been part of the record for years are as follows:
a) An Affidavit of Stewart Wilson dated September 8th, 2021. That Affidavit attaches an Affidavit of Farnaz Yaghinali dated August 14th, 2015. The only new allegation in Mr. Wilson’s Affidavit is a claim that Ms. Yaghinali is being threatened by Ms. Fatahi-Ghandehari.
b) An e-mail dated January 28th, 2022 from Ms. Farnaz Yaghinali alleging that Ms. Fatahi-Ghandehari has provided a fraudulent will from her father. This claim is based on Ms. Yaghinali’s assertion that Ms. Fatahi-Ghandehari’s first name is not Sara but Saluma and that she was never known as Sara in Iran.
[31] At this point, it is clear that almost all of the evidence that Mr. Wilson seeks to rely in in support of his allegations of fraud were actually either available in January of 2018 or were actually before Price J. in January of 2018. The bulk of the documents and allegations were actually before Price J. in January of 2018. I will return to the significance of this fact in my application of the law.
c) The Issue of Fraud in Previous Judicial Determinations
[32] There have been a number of occasions in which the issues raised by Mr. Wilson on this motion have been considered by the Court. The most important instance occurred on January 11th, 2018. At that point, Price J. had found Mr. Wilson in contempt and was considering the question of sentencing. He was faced with a motion brought by Mr. Wilson to set aside the contempt finding on the basis that Ms. Fatahi-Ghandehari had perjured herself in Court proceedings.
[33] Voluminous motion records were filed by both sides for this motion. In a handwritten and unreported endorsement, Price J. dismissed the motion to set aside his contempt finding. His endorsement includes the following conclusions:
The Court will not stay the contempt motion on the ground of Ms. Fatahi-Ghandehari’s alleged perjury or make an order inquiring Ms. Fatahi-Ghandehari’s aunt, Farnaz Yaghinali, who Mr. Robson now says refuses to attend court or to attend to be examined, to attend to examined on the assertion attributed to her by Mr. Wilson that Ms. Fatahi-Ghandehari received no inheritance from her maternal grandparent (Ms. Farnaz Yaghinali’s parents). The affidavit of Ms. Yaghinali, relied on by Mr. Wilson in support of his motion to stay the contempt proceeding against him, is from the parties’ civil proceeding in Milton, and it or a facsimile of it was withdrawn by Mr. Wilson in the course of the contempt motion. It is neither new evidence nor reliable as is apparent from a video clip made by Ms. Fatahi-Ghandehari from her cell phone, as attached to her affidavit of January 2, 2018, in which Ms. Yaghinali is clearly shown asserting that Ms. Fatahi-Ghandehari “stole” her [Ms. Yaghinali] inheritance from her. It is evidence from Ms. Fatahi-Ghandehari’s evidence, that this is the same inheritance that Mr. Wilson seeks to rely on Ms. Yaghinali’s old affidavit to prove never existed.
I find, based on a thorough review of both parties’ affidavits, that Ms. Fatahi-Ghandehari did not give perjured evidence and that the TD bank account No.5233811 that Mr. Wilson characterizes as “previously undisclosed” by Ms. Fatahi-Ghandehari was, in fact, disclosed, and that it was, since the parties separation, controlled by Mr. Wilson and not by Ms. Fatahi-Ghandehari, and is one of the accounts that was operated under The 2246519 Ontario Corporate persona of Mr. Wilson. Ms. Fatahi-Ghandehari has set out the circumstances in relation to this account fully and to my satisfaction in paras. 12 to 21 of her affidavit sworn January 1, 2018.
- Based on the foregoing, it is ordered that Mr. Wilson’s motion to stay the contempt motion against him is dismissed.
[34] This is not the only time in which the issues that Mr. Wilson proposes to address by way of a Rule 59 motion have been considered by Price J. For example, in his reasons dated October 10th, 2017 (2017 ONSC 6034), Price J. explicitly rejected Mr. Wilson’s assertion that Ms. Fatahi-Ghandehari was in “complete control” of his business prior to their separation. At paragraphs 137 and 138 of those reasons, Price J. sets out the evidence that contradicts Mr. Wilson’s assertion in this regard.
[35] This same decision of Price J. also sets out (at paras. 142 to 147) a detailed discussion of the purchase and sale of the Neils Avenue property. As part of his disclosure obligations, Mr. Wilson had been ordered to produce evidence that would “establish whether the funds derived, as Ms. Fatahi-Ghandehari alleges, from her and Mr. Wilson’s family property” (para. 143). Price J. found beyond a reasonable doubt that Mr. Wilson wilfully failed to produce “the Agreement of Purchase and Sale, and failed to produce a tracing of the funds used to purchase the property.”
[36] In other words, notwithstanding Mr. Wilson’s claims of fraud, he did not come to the Court with any evidence to support those claims. Instead, he deliberately refused to disclose the evidence on the issues he himself has raised. Having been found in contempt for his failure to disclose relevant documents in the litigation, Mr. Wilson still seeks to litigate the fraud allegations.
[37] The assault was also an issue that was before Price J. on more than one occasion. For example, in his reasons on sentencing Mr. Wilson for contempt (2018 ONSC 5587), Price J. notes (at para. 21) that “Mr. Wilson alleges that Ms. Fatahi-Ghandehari staged the reported assault on her in order to remove him from the business.”
[38] The issue of a fraudulent claim of an assault was raised as far back as 2015. Mr. Wilson alleges that the parties’ landlord, Mr. Rommell “Mel” Tiqui would testify that Ms. Fatahi-Ghandehari’s claim of an assault was false. However, the police reports from 2015 show that the evidence of Mr. Tiqui was available to the Court prior to Price J. making his determination on the contempt issues. It is not new evidence.
[39] In other words, the issues of fraud that Mr. Wilson wishes to raise in his Rule 59 motion both in respect of the inheritance and in respect of the assault have all formed part of the decisions that Price J. has made. This brings me to the applicable law.
d) The Applicable Law
[40] I start with the issue of whether the proposed Rule 59 motion would amount to an abuse of process or would be otherwise caught by a related doctrine. The leading Canadian authority on the subject of abuse of process is Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77. In that decision, Arbour J., writing for the majority, stated (at paras. 51 to 53):
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).
[41] In the Toronto decision, Arbour J. also discusses the principles that would be applicable in respect of the doctrine of issue estoppel. I am of the view that either principle could apply to the facts of this case. However, given that there are a multiplicity of different claims in this case, the abuse of process doctrine is more appropriately applied as it allows me to deal with the issues in this case more completely. The proposed Rule 59 motion is an abuse of process for three reasons.
[42] First, the matters have already been litigated between the parties. At paragraphs 33-35, I have set out the conclusions that Price J. reached on each of these issues. In particular, on January 11th, 2018 Price J. heard and dismissed a motion to set aside the finding of contempt against Mr. Wilson. Many, if not all of the same facts and arguments that are being advanced in this proposed Rule 59 motion were advanced before Price J.
[43] The re-litigation of issues that have previously been considered by the Courts can create an abuse of process. This is because of the serious detrimental effects that re-litigation can bring. See Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141. In this case, there is both a risk of inconsistent findings and the waste of judicial resources if these issues are re-litigated.
[44] Counsel for Mr. Wilson argues that “[t]he issue has never been litigated. Price J. ignored materials put before him.” There are two problems with this argument. First, if there were issues with Price J.’s determinations on the contempt hearing, it was open to Mr. Wilson to appeal all of those decisions. He failed to advance those appeals. Second, Price J.’s reasons of January 11th, 2018 make it abundantly clear that he turned his mind to the issue of an alleged fraud (or perjury) on the part of Ms. Fatahi-Ghandehari and rejected those claims.
[45] From this history, it is clear that these matters have already been litigated. Permitting Mr. Wilson to re-litigate them would be an abuse of process, especially given the long and tortured history of this litigation.
[46] Second, Mr. Wilson’s sentence for his contempt of court in the family law proceeding was to have his pleadings struck and to be prohibited from participating in the undefended trial. He now seeks to set aside my findings on the undefended trial by claiming that there was a fraud. Permitting Mr. Wilson to advance this argument would result in Mr. Wilson being able to avoid his sentence for contempt and advance all of the arguments that he would have wanted to advance if he had been permitted to participate in the undefended trial.
[47] Counsel for Mr. Wilson also argues that Ms. Fatahi-Ghandehari did not provide Mr. Wilson’s evidence about the alleged frauds (and particularly about the assault) to the Court. I reject this submission for two reasons. First, Mr. Wilson’s evidence has already been considered and rejected by Price J. Second, as I noted in the previous paragraph, allowing Mr. Wilson to advance this evidence would be nullifying the sentence that was imposed on him for his contempt.
[48] Counsel for Mr. Wilson also points to the decision of Denning L.J. (as he then was) in Lazarus Estates Ltd. v. Beasley, [1956] 1 Q.B. 702, which states:
No Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgements, contracts and all transactions whatsoever…
[49] There are two problems with this assertion. First, Lord Denning’s statement about fraud is not applicable to this case. In Lazarus, the fraud had not been raised in the first instance. In this case, it is an issue that has been raised and rejected by the Court. Indeed, as I have pointed out above, there have already been a number of judgments that reject the fraud claims being advanced by Mr. Wilson. I acknowledge that, in the motion determined by Price J. on January 11th, 2018, Mr. Wilson alleged that Ms. Fatahi-Ghandehari had perjured herself. However, the underlying allegations are the same and, in this case, there is very little, if any, practical difference between committing a fraud on the Court and perjury.
[50] Second, and more importantly, Mr. Wilson was sentenced for contempt for failing to comply with a number of disclosure Orders. It would be an abuse of process and would bring the administration of justice in dispute to allow Mr. Wilson to avoid the consequences of his contempt and to be allowed to litigate the issues in the family law proceedings merely by claiming the existence of a fraud. Adopting Mr. Wilson’s position would render his sentence a nullity.
[51] My conclusion that Mr. Wilson’s proposed Rule 59 motion would be an abuse of process is strengthened by the overall approach to this litigation that Mr. Wilson has adopted. More than four years ago, the Court of Appeal (2018 ONCA 728) stated that “the record amply shows that the appellant [Mr. Wilson] has made a procedural morass of this case.” Mr. Wilson has continued to bring motions and advance arguments that seem to serve little purpose other than to complicate and delay this proceeding. The proposed Rule 59.06 motion is another such attempt.
[52] Although the first two reasons I have set out for finding an abuse of process are both, on their own, dispositive of this request, there is a third issue that also supports my conclusion that this motion would be an abuse of process. It has to do with the evidence that was tendered by Mr. Wilson. Virtually all of the evidence that Mr. Wilson has tended was available to him when he brought the motion to set aside the contempt finding before Price J. on January 11th, 2018.
[53] Rule 59 is to be used sparingly and the onus is on the moving party to show that an exception should be made to the fundamental rule that final judgements are final. Tsaoussis (Litigation Guardian of) v. Baetz (1998), 1998 CanLII 5454 (1998) 41 O.R. (3d) 257. The Court should proceed cautiously when considering whether to revisit its final decisions. Rule 59.06 is not an invitation to re-argue cases endlessly. Berge v College of Audiologists and Speech Language Pathologists of Ontario, 2019 ONSC 3351 at para. 34.
[54] The Court of Appeal has also considered Rule 59.06 in Mehedi v. 2057161 Ontario Inc, 2015 ONCA 670 391 D.L.R. (4th) 274. In that case, the Court stated (at para. 13):
[13] The test under rule 59.06(2)(a) to re-open a trial that applies after the judgment or other order has been issued and entered was set out by Doherty J.A., speaking for the court, in Tsaoussis (Litigation Guardian of) v. Baetz (1998), 1998 CanLII 5454 (ON CA), 41 O.R. (3d) 257, [1998] O.J. No. 3516, at paras. 41 and 44. As he noted, the onus is on the moving party to show that all the circumstances “justify making an exception to the fundamental rule that final judgments are exactly that, final.” In particular, the moving party must show that the new evidence could not have been put forward by the exercise of reasonable diligence at the original proceedings. The court will go on to evaluate “other factors such as the cogency of the new evidence, any delay in moving to set aside the previous judgment, any difficulty in re-litigating the issues and any prejudice to other parties or persons who may have acted in reliance on the judgment.”
[55] The test for setting aside a judgment under Rule 59.06 has recently been discussed in Saggi v. Grillone 2021 ONSC 2276. The test includes an element that the alleged fraud was not known at the time of the trial. In this case, the alleged fraud was squarely before the Court by way of Mr. Wilson’s materials on the January 11th, 2018 motion.
[56] The test for setting aside a judgment under Rule 59 also requires the moving party to show that the new evidence could not have been put forward by the exercise of reasonable diligence. As I have set out above, most if not all of the evidence that Mr. Wilson seeks to rely on to bring his proposed Rule 59 motion was already before Price J. when he made his decision on January 11th, 2018. The proper way to challenge this decision would have been through an appeal. The proposed Rule 59 motion has no chance of clearing the minimum threshold under Rule 59 and it would be an abuse of process to permit the motion to be brought.
[57] For these reasons, Mr. Wilson’s request for leave to bring a motion under Rule 59 to set aside my decision in the undefended trial is dismissed.
[58] I should be clear as to the scope of this dismissal so that there are no misunderstandings. My finding is that, for all purposes, the issue of whether Ms. Fatahi-Ghandehari or her counsel engaged in any fraud in this case has been finally determined by this Court and will not be revisited by me.
[59] In that respect, I note Mr. Wilson’s submission that he has filed a Notice of Appeal in respect of my decision on the undefended trial. I also note that Ms. Fatahi-Ghandehari has challenged that assertion. That is a matter for the reviewing Court to determine and I will say nothing further about it.
The LSO Action
a) Background
[60] The litigation between Ms. Fatahi-Ghandehari and Mr. Wilson has been contentious. That litigation has spawned a series of complaints to the LSO about the conduct of Mr. Robson, counsel for Mr. Wilson. Those complaints have been the subject of litigation before the Law Society Tribunal. I understand that Mr. Robson may also have been involved in other complaints before the Law Society Tribunal that have been brought by other clients. I have not been provided with details of these complaints.
[61] In March of this year, Mr. Robson commenced an action in the Superior Court in Toronto on behalf of Mr. Wilson. The Statement of Claim in that action alleges that both Ms. Fatahi-Ghandehari and Mr. Siddiqui have commenced complaints against Mr. Robson at the LSO that “put into issue several substantive matters which are in issue in [these] proceedings, on which the credibility of Wilson and Ghandehari are central factors.” The claim goes on to allege that these complaints are without foundation and have been brought as a litigation strategy by Ms. Fatahi-Ghandehari and Mr. Siddiqui.
[62] The claim goes on to allege that the LSO “has a policy of suspending its pursuit of complaints in like circumstances” in part to protect litigants such as Mr. Wilson who might be drawn into the complaints process. The claim alleges that the LSO has improperly initiated and continued the complaints proceeding against Mr. Robson and, “in doing so, the LSO has in effect made itself an unnamed third party in [these] proceedings.”
[63] This claim was brought in Toronto and named the LSO as a Defendant. Neither Ms. Fatahi-Ghandehari nor Mr. Siddiqui were added as parties.
[64] Counsel for the LSO wrote to my judicial assistant to seek guidance on what should be done with this claim. The reason counsel was seeking guidance was because of a paragraph in my decision on May 26th, 2021 that states as follows (at para. 69):
[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.
[65] This direction made it clear that the parties to the family law litigation, being Ms. Fatahi-Ghandehari and Mr. Wilson, could not bring any proceedings in respect of “the issues in this litigation” before another judge of the Superior Court. Based on that direction, the LSO took the view that the matter should be case-managed by me. Mr. Wilson opposed that position and alleged that the case should be left in Toronto.
[66] As a result of these issues, I convened a case management hearing on May 20th, 2022. At the end of that hearing, I set a timetable for written submissions on the issue of whether the LSO action should be case-managed by me and whether it should be transferred to Brampton. Although technically it would be the LSO that would be bringing this motion, Mr. Wilson made his submissions first as that gave him a right of reply and the opportunity to have the last word.
[67] Originating submissions were made by Mr. Robson in accordance with the timeline I had set. Once the submissions from the LSO and Ms. Fatahi-Ghandehari were made on June 8th, 2022, the only step left was reply submissions on the part of Mr. Wilson. Those were due on June 14th, 2022.
[68] I did not receive the reply submissions on time. On June 16th, 2022, I received an e-mail from Samir Chhina, a Barrister and Solicitor advising that Mr. Robson had been suspended by the law society. This e-mail also asked for an extension to provide the reply submissions for a period of thirty (30) days on the basis of “Mr. Robson’s sudden and unexpected unavailability.”
[69] In response to this e-mail, I received a reply from Mr. Rocco Scocco, who is one of the lawyers assisting Ms. Fatahi-Ghandehari with this litigation. In that e-mail, Mr. Scocco confirmed that Mr. Robson’s suspension began on June 13th, 2022 (the day before the deadline for submissions) and that the suspension Order was made on June 2nd, 2022. As a result, Ms. Fatahi-Ghandehari was opposing the extension.
[70] Mr. Scocco’s e-mail also stated that “we require a formal notice of change of lawyer to be filed forthwith if Mr. Chhina is to act for Mr. Wilson”. I reject that request. Neither Mr. Scocco nor any of the other lawyers representing Ms. Fatahi-Ghandehari have formally come on the record in this case. It would be unfair for me to require counsel assisting Mr. Wilson to come on the record where I have not imposed that requirement on Ms. Fatahi-Ghandehari. However, I have to ensure that Mr. Wilson is consenting to have Mr. Chhina assist him in the course of these proceedings while Mr. Robson is suspended. I will address this issue further in my directions below.
[71] I released an endorsement on June 22nd, 2022 in which I denied the request for a thirty (30) day extension. Instead, I granted an extension until Monday, June 27th, 2022 at noon. I received nothing from either Mr. Chhina or Mr. Wilson in that time period.
[72] On August 2nd, 2022, in the course of preparing these reasons, my judicial assistant sent an e-mail to Mr. Wilson and Mr. Chhina confirming that no further submissions had been made. I received no reply to this e-mail from either of them although Ms. Fatahi-Ghandehari’s counsel confirmed that he had received nothing in the way of reply submissions.
[73] There have been considerable delays in this case. There was no good reason for failing to ensure that the reply submissions due on June 14th, 2022 were provided to the Court. Mr. Robson was only suspended effective on June 13th, 2022. Further, an indulgence was provided to Mr. Wilson that should have provided him with plenty of time to ensure that Mr. Chhina either provided the reply submissions in a timely way or assisted Mr. Wilson in preparing those reply submissions. As a result, I have determined that I will render my decision on these issues without any further delay.
b) The Issues
[74] There are two issues that I have to determine in order to resolve this part of the case:
a) Should I assume case-management responsibility over this action?
b) Should the action be transferred to Brampton?
[75] I will deal with each issue in turn. Before turning to these two issues, I note at the outset that the LSO suggested that I could stay Mr. Wilson’s action against them on the basis that it was not brought in accordance with my Orders. I am rejecting that request. However, my direction has been clear that any actions in respect of the underlying facts must be brought before me. Any further breach of this direction may result in a permanent stay being imposed on the party who breaches my directive. If counsel is not sure whether an action should be brought before me or not, they must ask before commencing the action. I will not accept an after-the-fact justification that someone didn’t know it was covered by my directives.
c) Assuming Case Management Responsibility?
[76] Counsel for Mr. Wilson advances two arguments as to why I should not assume case-management responsibility over this action:
a) That I will not provide Mr. Wilson with a fair hearing.
b) That Mr. Wilson’s action against the LSO is an integral part of a series of actions that Mr. Robson has “instituted against the LSO due to malfeasance in public office, negligence and malicious prosecution.”
[77] The first issue may be dealt with very briefly. It is, in essence, an allegation of bias. It is not the first time that Mr. Robson, on behalf of Mr. Wilson, has raised a claim of bias in this case. Indeed, Mr. Robson raised allegations of bias and incompetence in e-mails sent to my judicial assistant on January 6th, 2022.
[78] By way of a letter dated January 10th, 2022, Ricchetti R.S.J. provided Mr. Robson with a response to these allegations and advised him that I would not be responding to them. As part of that response, Mr. Robson was advised that if he wished to bring a motion to have me recuse myself for bias, he should bring the motion on proper materials. No such motion has been brought. In the absence of such a motion filed on proper materials, I am not prepared to consider any allegations of bias in this matter.
[79] This brings me to the second concern expressed in counsel for Mr. Wilson’s submissions. Mr. Robson alleges that Mr. Wilson’s action against the LSO is an integral part of a series of actions that Mr. Robson has brought in his own capacity against the LSO. I also reject this argument for two reasons:
a) I was not provided with any information on these other actions that Mr. Robson has brought against the LSO. As a result, it is difficult to see how Mr. Wilson’s action against the LSO is “integral” to these actions, especially since Mr. Wilson is a different party, with different rights, than his lawyer.
b) Even if there is a connection between Mr. Robson’s actions against the LSO and Mr. Wilson’s action, there is a much stronger connection between Mr. Robson’s action against the LSO and Mr. Wilson’s litigation with Ms. Fatahi-Ghandehari. Indeed, the claims in Mr. Wilson’s action against the LSO flow, in part, from his assertions that Ms. Fatahi-Ghandehari and her lawyer, Mr. Siddiqui, have been dishonest. The credibility of the same witnesses may arise in both Mr. Wilson’s litigation with the LSO and his litigation with Ms. Fatahi-Ghandehari.
[80] As counsel for the LSO correctly notes, there is a risk if Mr. Wilson is allowed to pursue a multitude of similar proceedings in different forums. The overlap in the issues between Mr. Wilson’s claim against the LSO and the issues in his various proceedings against Ms. Fatahi-Ghandehari is significant. Many of the witnesses would be the same and many of the legal issues would be the same as well. There would be significant risks of both duplication of proceedings and inconsistent outcomes if these cases were allowed to proceed in separate jurisdictions and be managed separately.
[81] In other words, the interests of justice will be served if I case-manage the LSO action together with all of the other related proceedings between Ms. Fatahi-Ghandehari and Mr. Wilson.
[82] This brings me to the question of whether I have the jurisdiction to assume case management responsibility for this action. That issue is separate from the question of whether the action ought to be transferred to Brampton.
[83] Counsel for the LSO argues that I have the inherent jurisdiction to order case management of this action regardless of whether I have any statutory authority to order case management. Counsel for the LSO has cited a number of authorities in support of their view that I have the jurisdiction to case manage this action.
[84] Counsel for the LSO correctly points out that I have inherent jurisdiction and that the purpose of which is to “empower a superior court to regulate its proceedings in a way that secures convenience, expeditiousness and efficiency in the administration of justice.” Endean v. British Columbia, 2016 SCC 42 at para 60.
[85] The Endean decision provides a detailed discussion of the issue of inherent jurisdiction. From that decision, there are two points that are important for my consideration of this case, as follows:
a) Inherent jurisdiction should only be used sparingly and should only be used if there are no statutory powers available. Endean, para. 24.
b) However, the Courts can draw upon the powers associated with inherent jurisdiction where it is necessary to ensure the observance of due process and to prevent the improper vexation or oppression of parties. Endean para. 23.
[86] Further, the Court of Appeal has noted that the Superior Court’s inherent jurisdiction may be exercised where there is a gap left by a legislative body. See Danso-Coffey v. Ontario, 2010 ONCA 171 (2010) 99 O.R. (3d) 401.
[87] In this case, there are no provisions that either prevent or expressly permit a judge to case-manage a matter in a different jurisdiction. However, given that case management responsibilities are assigned by the Chief Justice, the Associate Chief Justice or the Regional Senior Justice (see Rule 37.15(1)) there are serious questions as to whether I would have the jurisdiction to manage a case that was being litigated in a different Region. As a result, having determined that it would be in the interests of justice for me to case-manage this matter, I now turn to consider whether it should be transferred to Brampton.
d) Should This Action be Transferred to Brampton?
[88] Yes.
[89] I reach that conclusion for two reasons. First, I previously made an Order that no actions in respect of the proceedings in this issue could be brought before any other judge of this Court. The pleading that was filed on Mr. Wilson’s behalf clearly engages the facts and issues between the parties in this case. It is an action that should have been started in Brampton before me.
[90] Second, there is the test for transferring an action. Motions to transfer are governed by the principles in Rules 13.1.02(1) and 13.1.02(2), which state:
Motion to Transfer to Another County
13.1.02 (1) If subrule 13.1.01 (1) applies to a proceeding but a plaintiff or applicant commences it in another place, the court may, on its own initiative or on any party’s motion, order that the proceeding be transferred to the county where it should have been commenced. O. Reg. 14/04, s. 10.
(2) If subrule (1) does not apply, the court may, on any party’s motion, make an order to transfer the proceeding to a county other than the one where it was commenced, if the court is satisfied,
(a) that it is likely that a fair hearing cannot be held in the county where the proceeding was commenced; or
(b) that a transfer is desirable in the interest of justice, having regard to,
(i) where a substantial part of the events or omissions that gave rise to the claim occurred,
(ii) where a substantial part of the damages were sustained,
(iii) where the subject-matter of the proceeding is or was located,
(iv) any local community’s interest in the subject-matter of the proceeding,
(v) the convenience of the parties, the witnesses and the court,
(vi) whether there are counterclaims, crossclaims, or third or subsequent party claims,
(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits,
(viii) whether judges and court facilities are available at the other county, and
(ix) any other relevant matter. O. Reg. 14/04, s. 10.
[91] The Plaintiff has the right to determine where to bring an action in the first instance. Powell v. Maisuria, 2017 ONSC 2278 at para. 5. However, if the choice that the Plaintiff makes is a reasonable choice, then the Court will look at the factors holistically to determine which venue is a more reasonable location for the trial. See Chatterson et. al v. M&M Meat Shops Ltd., 2014 ONSC 1897, 2014 ONCS 1897 (Div. Ct.).
[92] In this case, there are serious questions about whether the Plaintiff’s decision to commence this action in Toronto was reasonable. As noted at paragraph 89, I have previously made an Order that any related proceedings brought by either party are to be brought before me in Brampton.
[93] However, even if I accept that Toronto was a reasonable location for the Plaintiff to bring the action, if the Defendant can show that Brampton is a significantly better venue then the action will be transferred to Brampton. See McLoughlin v. Mladenovski, 2016 ONSC 2222, Samuel v. Kearley 2015 ONSC 4784.
[94] In this case, Brampton is a significantly better venue as there are other actions that relate to the same issue that are proceeding in Brampton. In addition, the issues that I have identified at paragraphs 79-81 all support a transfer of this action to Brampton.
[95] As a result, having consulted with the Regional Senior Justice, I have been designated to hear and determine this transfer request, and I am ordering that the action be transferred to Brampton.
Conclusion
[96] For the foregoing reasons, I order as follows:
a) Mr. Wilson’s request to bring a motion under Rule 56 to set aside my decision on the undefended trial is dismissed on the grounds that it is an abuse of process and on the grounds that it would have no chance of success.
b) The issue of fraud in respect of the inheritance Ms. Fatahi-Ghandehari received, in respect of any claims of fraudulent transactions from the business and in respect of all other aspects of net family property is fully and finally addressed by the decision of Price J. on January 11th, 2018.
c) The Order in paragraph b applies to the allegations that Ms. Fatahi-Ghandehari’s claim that she was assaulted by Mr. Wilson was fraudulent as well.
d) Mr. Wilson’s action against the Law Society of Ontario is order to be transferred to Brampton from Toronto where I will case manage it.
[97] The LSO and Ms. Fatahi-Ghandehari have both been entirely successful on these motions and Mr. Wilson has been entirely unsuccessful. The parties are encouraged to agree on costs. Failing agreement, the LSO and Ms. Fatahi-Ghandehari are required to serve and file their costs submissions within twenty-one (21) calendar days of the release of these reasons. Those submissions are to be no longer than two (2) single-spaced pages, exclusive of case-law, bills of costs or offers to settle.
[98] Mr. Wilson will have a further twenty-one (21) days after the costs submissions of Ms. Fatahi-Ghandehari and the LSO are served and filed to serve and file his costs submissions. Those submissions are also to be no longer than two (2) single-spaced pages, exclusive of case-law, bills of costs or offers to settle.
[99] There are to be no reply submissions on costs without my leave.
[100] Mr. Wilson is currently unrepresented because Mr. Robson is currently suspended by the LSO. The timetable for costs submissions takes this fact into account and will not be extended further. In addition, the timetable for costs submissions may not be extended, even on consent, without my leave.
[101] This brings me to the next steps in this matter. There are three issues that need to be addressed, as follows:
a) There is a half-day hearing scheduled on September 19th, 2022 for the purposes of considering the amount, if any, that should be paid to Associated Bailiffs on account of the storage of certain cars that I have directed be sold. Notwithstanding Mr. Robson’s suspension from the law society, I expect that this matter will proceed both because Mr. Wilson’s involvement in the matter is more peripheral and because it has been outstanding for a considerable period of time.
b) We need to address the issue of who is representing Mr. Wilson while Mr. Robson is serving his suspension. Given that the suspension has both a definite and an indefinite element to it, and given that this action has been before the Courts for a considerable period of time, I am not prepared to wait for Mr. Robson to serve his suspension before considering next steps. However, in order to address this issue, Mr. Wilson must either attend the next hearing personally or have Mr. Chhina (or other counsel of his choice) serve a notice of change of solicitors. If Mr. Wilson attends personally, he can have Mr. Chhina assist him and address the matter without serving the notice of change of solicitors. This issue will also be canvassed on September 19th, 2022.
c) We need to address the next steps to resolve this matter. This issue will also be addressed on September 19th, 2022.
[102] Given the issue agenda for September 19th, 2022, all interested parties (including the Braidmore parties and the LSO) are required to attend at the outset of this hearing. Procedural directions will be made in the absence of any party who fails to attend and will be made without further notice to that party.
[103] The appearance on September 19th, 2022 is by ZOOM.
LEMAY J
Released: August 19, 2022
COURT FILE NO.: FS-15-83320-0000
DATE: 2022 08 19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sara Fatahi-Ghandehari
Applicant
- and -
Stewart Wilson
Respondent
REASONS FOR JUDGMENT
LEMAY J
Released: August 19, 2022