ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sara Fatahi-Ghandehari
Self-Represented, Assisted by R. Scocco
Applicant
- and -
Stewart Wilson
Self-Represented, Assisted by S. Chhina
Respondent
- and -
Associated Bailiffs and Co. Ltd.
Joseph Siracusa, Personal Representative
HEARD: September 19th, 2022 by Videoconference
REASONS FOR DECISION
LEMAY J
1This is another decision in a long line of cases involving this matter. They style of cause reflects the main family law action in this matter. However, there are other actions between the parties and The parties have had a long litigation history. Part of that history includes the seizing by a bailiff of two cars that were owned by the Respondent, Stewart Wilson. The cars were in the possession of Associated Bailiffs. Those cars were subsequently sold under Court supervision and the monies associated with those payments were paid into Court.
2Associated Bailiffs and Co. Ltd. (“Associated”) has an account for the seizing and storage of the cars that they wish to have paid. Associated asks that this account be paid out of the monies that were paid into Court from the sale of the cars. The Applicant, Ms. Fatahi-Ghandehari, argues for a multiplicity of reasons that Associated should not be entitled to any compensation for the storage of the vehicles.
3Associated claims the sum of $46,016.30. For the reasons that follow, I have determined that the amount of $36,810.88 should be paid to Associated Bailiffs. The remainder of the money paid into Court is to be paid out to Ms. Fatahi-Ghandehari. The payment orders become effective thirty-one (31) days from the date of my decision.
4I have also provided the parties with additional directions on other issues that were either outstanding and had not been addressed or were raised by Ms. Fatahi-Ghandehari.
Background
a) The Parties
5Stewart 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.
6Mr. 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 separation at least as far as I am aware.
7One of Mr. Wilson’s business partners appears to have been a Jason Braidmore. Some of Mr. Braidmore’s assets are the subject of a preservation order as they appear that they may have been beneficially owned by Mr. Wilson. Mr. Braidmore had counsel in this matter, and had been invited to attend the litigation on a number of occasions. Mr. Braidmore was advised, through his counsel Mr. Richard Watson, on at least two occasions to attend. He has chosen not to.
8I have set out this information in detail as there may be, at some point in the future, an expression that Mr. Braidmore may have had an interest in the cars that were sold under Court supervision. That argument is not tenable as Mr. Braidmore did not participate in this process even after being advised of the consequences of non-participation.
9Associated is a company that provides bailiff services. It is not a party to the action. However, it did hold the cars that were owned by Mr. Wilson and eventually sold under Court supervision. Associated wishes to be paid for its fees out of the proceeds of the money paid into Court.
b) The Events Relating to the Cars
10There was considerable litigation over the cars that were either beneficially owned by Mr. Wilson or by his company. That litigation has its genesis in the fact that, in 2009, Mr. Wilson made an assignment into bankruptcy. As a result, the cars that he used to run the business were in the possession of a numbered company. The sole shareholder of that numbered company was Ms. Fatahi-Ghandehari’s mother.
11In March of 2015, Mr. Wilson brought proceedings before Gray J. in order to have the cars returned to him. Gray J. issued an Order on March 3rd, 2015 finding that the cars controlled by the numbered company were actually the property of Mr. Wilson.
12Shortly after this Order was made, Mr. Wilson’s Trustee in Bankruptcy secured an Order seeking to have these cars turned over to the Trustee. This Order was made by Patillo J. sometime in April of 2015.
13However, in the fall of 2016, Mr. Wilson either still had possession of some cars or had come into possession of some new cars. The litigation between the parties was ongoing and, at that point, there had been considerable non-compliance with Court orders on the part of Mr. Wilson. Ms. Fatahi-Ghandehari brought a motion before Price J., who was the case management judge at the time. She sought a preservation order under section 12 of the Family Law Act, R.S.O. 1990, c. F.3.
14In a decision released on November 3rd, 2016, (2016 ONSC 6863), Price J. granted a preservation Order. As part of that Order, Price J. stated:
All assets listed in this Order shall forthwith be delivered up to a bailiff named by the Applicant and be stored in a storage facility without access for preservation until the Family Law proceedings comes to a close, or periodic further of this court.
15As part of Price J.’s Order, there was a list of approximately eighteen cars. There was also a list of three bikes and an order that there was one boat to be collected.
16On November 5th, 2016, Mr. Siracusa attended at Mr. Wilson’s residence in Smithville, Ontario. At that time, he was only able to find and tow a Ferrari from the site. On November 24th, 2016, Mr. Siracusa was able to receive a Dodge Charger.
17The vehicles remained in the possession of Mr. Siracusa and his company until they were disposed of as described below.
18In my decision on the undefended trial (2021 ONSC 3547), I ordered that Ms. Fatahi-Ghandehari was entitled to recover in excess of $1 million from Mr. Wilson. I understand that those monies have not been paid.
19I was asked to set aside the decision on the undefended trial on the basis of Mr. Wilson’s claims that the decision was based on a fraud perpetrated on the Court by Ms. Fatahi-Ghandehari and her counsel (2022 ONSC 4799). I rejected that request. I have no idea if that decision has been appealed.
20In the end, the two cars that were seized are assets that the Court has held. As far as the Court can see, the only people with an interest in the cars were Mr. Wilson, Ms. Fatahi-Ghandehari and Associated. As a result, I adopted a process to deal with those cars and I now turn to that issue.
c) The Process Adopted to Resolve This Matter
21While I was dealing with the request to set aside the decision in the undefended trial, I was also dealing with the issue of the two cars. In my reasons of May 26th, 2021 (2021 ONSC 3708) at para. 44, I pointed out that the bailiff had been peripherally involved in these matters and that he was asked to attend the next hearing.
22The next hearing was held on June 8th, 2021 and a decision on next steps was released on June 15th, 2021 (see 2021 ONSC 4311). At that time, I determined that the parties were ad idem that the two cars in Associated’s possession should be sold. Mr. Siracusa, on behalf of Associated, advised me that he also wished to have them off of his property as he had not been paid for storage fees for more than five years.
23I determined that the cars should be sold in a way that maximized their value and designed a process that would allow for that to happen, while providing the parties with transparency in the bids solicited by Mr. Siracusa. I scheduled a further follow-up hearing to determine whether the bidding process was proceeding smoothly.
24At the hearing on July 28th, 2021, I confirmed that an auction had taken place for the sale of the Ferrari and that no one objected to its sale. I also directed Mr. Siracusa to turn over all of the paperwork relating to the Ferrari to Ms. Fatahi-Ghandehari and permitted her to ask for further disclosure if necessary. Finally, I directed that all of the proceeds from the sale of the Ferrari were to be paid into Court pending further Order from me.
25The matter came back before me on January 28th, 2022. At that time, I directed Mr. Siracusa to provide Associated’s bill to the parties. I also set time limits for the parties to challenge that bill. Mr. Siracusa provided all parties with a copy of the bill at that hearing. The parties were given fourteen (14) days to challenge Associated’s bill. There were challenges to that bill from Ms. Fatahi-Ghandehari in particular.
26At the next case conference on February 25th, 2022, it was clear that Ms. Fatahi-Ghandehari was challenging Mr. Siracusa’s bill. I pause to note that it would have been possible to direct that a new action be commenced in order to address both the bill and the challenge from Ms. Fatahi-Ghandehari. However, this litigation has consumed an immense amount of Court time. It needs to be managed. As a result, I adopted a more summary approach to dealing with a claim from Associated that was not significantly greater than the monetary limit in the small claims court. This process was adopted without any significant objection from either of the parties or from Mr. Siracusa.
27That process required parties to file Affidavits in support of their position. Given that Mr. Siracusa and Associated were self-represented, I provided Mr. Siracusa with some information about what the Court’s expectations would be in those Affidavits. Those Affidavits were duly filed by the parties.
28Mr. Siracusa chose to represent Associated himself. I offered him the opportunity to seek legal advice and to have a lawyer represent him on two separate occasions. As noted above, I also provided Mr. Siracusa with some information on what the Court would expect to be in the Affidavits. It has been clear throughout this process that Mr. Siracusa is anxious to have this matter resolved.
29Ms. Fatahi-Ghandehari filed an originating Affidavit. Mr. Siracusa had an opportunity to respond to Ms. Fatahi-Ghandehari’s Affidavit. Ms. Fatahi-Ghandehari filed a Reply Affidavit.
30I set aside a half day to hear this matter on September 19th, 2022 and, if necessary, was prepared to spend more time on it. I had anticipated that the parties might wish to conduct cross-examinations on the Affidavits that had been exchanged. None of the parties were interested in conducting cross-examinations that related to the issues before me. I was asked to determine the matter on the basis of the Affidavits that had been filed. I will now proceed to do so.
Positions of the Parties
31Ms. Fatahi-Ghandehari takes the position that Associated improperly stored the Ferrari. She also takes the position that the storage of the Dodge Charger was also done improperly. As a result, she is seeking to recover approximately $53,000.00 in damages related to the improper storage of the two vehicles.
32Associated took the position that the bills that they had provided were reasonable and that I should order that they be paid. Those bills were for a total of $46,016.30, inclusive of HST. That amount was for both cars.
33Mr. Wilson did not take a significant part in the argument of this issue. However, he did agree with Ms. Fatahi-Ghandehari’s position on the storage of the Ferrari. He also argued that none of the money should be paid out to Ms. Fatahi-Ghandehari because of the other matters that are pending before the Court.
Issue #1- Did Associated Properly Incur the Expenses Invoiced?
34Yes.
35I start with Ms. Fatahi-Ghandehari’s assertions in her Affidavits. It was not until her reply Affidavit that Ms. Fatahi-Ghandehari specifically challenged the quantum of storage costs that Associated was charging. Given that the purpose of this hearing was to challenge her Affidavits, I would have expected to see the specific challenges to the amounts claimed in her originating Affidavit.
36I start by noting that, in Price J.’s Order, there was an expectation that approximately eighteen cars would be seized and preserved. Ms. Fatahi-Ghandehari states that she denies that she ordered 15 tow trucks. I reject that evidence. The fact that it was expected that there would be eighteen cars to tow makes it reasonable to order 15 tow trucks. In any event, however, Mr. Siracusa states that they attended Mr. Wilson’s residence with four flatbed tow trucks and six drivers. Given the number of vehicles that it was anticipated would be seized, this was entirely reasonable. There is no basis to make any deductions from the invoice for these services.
37Ms. Fatahi-Ghandehari goes on, in her Reply Affidavit, to state that, when she learned the costs for storage from Associated, that she immediately sought to have the vehicles moved and that Mr. Siracusa denied her the right to move them. I note that the Affidavits on this motion do not have any documentation to support this assertion. Given the contentiousness of this litigation, I would have expected that Ms. Fatahi-Ghandehari would have documentation to prove this assertion. In the absence of the documentation, I reject her assertion that she did not agree to pay Associated for the storage costs.
38I also note Ms. Fatahi-Ghandehari’s argument, contained in her reply Affidavit, that the Order of Price J. was breached by Associated because Associated did not return the cars to her when she requested them. This argument fails for two reasons. First, the Order directs the cars to be delivered to a bailiff of Ms. Fatahi-Ghandehari’s choosing. Second, Associated is a bailiff and has rights once it takes possession of the asset. In any event, however, I note that no Order was sought from the Court and none was made that I am aware of.
39This brings me to the quantum that was charged for storage. Mr. Siracusa states that he advised Ms. Fatahi-Ghandehari that Associated’s rate for storing vehicles was $70.00 per day. In support of that conclusion, Mr. Siracusa points to the decision in Mulvina v. Elahi et. al., an unreported decision of E.M. Morgan of this Court dated August 14th, 2012.
40In that decision, the Court considered the Repair and Storage Liens Act, R.S.O.1990, c. R.25. That Act also appears to apply in this case. The issue in Mulvina was the reasonable cost for storing a boat. The Court accepted that there was no formal contract between the parties, but went on to state (at para. 12):
12However, the Applicant clearly stored his boat at the Premises and Elahi is owed reasonable storage fees from August 10, 2012. I find that Elahi is entitled to a storage lien under section 4(1) of the Act and may retain possession of the boat until the storage fees as set out below are paid. Further, under section 7 of the Act, Elahi has the right to sell the boat and to satisfy the amount of the lien from the proceeds of that sale. The interlocutory injunction prohibiting sale of the boat ordered by Perrell J. on November 14, 2011 and continued by Lederman J. on April 20, 2012 is accordingly lifted.
41In other words, Associated is entitled to be compensated out of the sale proceeds for the costs of storage. Morgan J. went on to find that $328.00 a month to store a boat was a reasonable amount. In this case, the costs that Associated seeks are less.
42Associated also supports the reasonableness of its fees by reference to the decision in Hertz Corporation v. McLaren Collision Centre, 2016 ONSC 1327. In that case, the Court accepted a storage rate of $60.00 per day. Similarly, according to the materials filed by Associated, the Town of Oakville had a by-law during some of the relevant times where the prescribed rate for storage was $70.00 per day.
43Ms. Fatahi-Ghandehari’s Reply Affidavit does not challenge the amount being charged. She simply states that “the case laws [sic] are irrelevant to this matter since a fee was never agreed upon between Associated Bailiffs and me for towing and storing the Vehicles.”
44Assuming, without deciding, that there was no agreement between Ms. Fatahi-Ghandehari and Associated, the case-law cited by Associated remains entirely relevant. Associated has provided a service to Ms. Fatahi-Ghandehari by storing the cars for more than five years. As I understand her submissions, she seeks to avoid paying any compensation whatsoever for that service. Associated provided the service pursuant to a Court Order. They should be compensated for that service. This was the same approach adopted by Morgan J. in Mulvina and Dow J. in Hertz.
45I also note that Ms. Fatahi-Ghandehari raised the subject of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A. (“CPA”). No specific provision was referenced. On my review of the CPA, there is nothing in it that would preclude Associated from collecting at least some fees for the storage of the vehicles. There is no dispute that Associated is a bailiff and there is no dispute that the vehicles were stored there. Compensation for the services provided flows from those facts.
46I also note that Ms. Fatahi-Ghandehari claims that Associated should not receive any of its money until it is determined whether that money should be paid by her or by Mr. Wilson. I also reject this submission. Section 4(1) of the Repair and Storage Liens Act states that the storer has a lien against the article that was stored. In this case, Associated has a lien against the Ferrari. It is, therefore, proper to pay their account out of the funds in Court relating to the sale of the Ferrari.
47This brings me to the amount that Associated is seeking. As noted above, I have accepted that $70.00 a day is a normative amount in this industry. Associated seeks compensation in the amount of $250.00 per month for each car. That is an entirely reasonable compensation, even if Ms. Fatahi-Ghandehari was not advised of the $70.00 per day fee. Associated is entitled to collect this amount on a quantum meruit basis, even if there was no contract, subject only to whether there should be a deduction for the alleged improper storage of the cars. I now turn to that issue.
Issue #2- Did Associated Improperly Store the Cars?
48Yes, at least in respect of the Ferrari.
49As part of her Affidavit, Ms. Fatahi-Ghandehari has provided two relevant documents. First, she has provided information on the proper winter storage of a Ferrari. It is a delicate car and should be stored indoors. It is clear from the materials filed by both parties that it was not stored indoors.
50Second, Ms. Fatahi-Ghandehari has provided evidence showing that the value of a comparable Ferrari would be in the range of $230,000 to $245,000 and that the damage to the Ferrari that Associated had stored was approximately $53,000.00. That documentation was provided in her original Affidavit, and Mr. Siracusa’s only answer to it was that indoor storage would have cost a great deal more. As a result, I accept that the Ferrari was stored outdoors and that led to a depreciation in its value. It is a factor that I should consider in determining Associated’s compensation for their work in this matter.
51This brings me to the evidence in respect of the Dodge Charger. The documentation attached to Ms. Fatahi-Ghandehari’s Affidavit shows that the Dodge Charger was purchased for $9,040.00 in 2013. By the time the parties attempted to sell the car nine years later, they could not obtain anything for it.
52Ms. Fatahi-Ghandehari argues that this is as a result of Associated’s improper storage of the vehicle. The problem with this argument is that it ignores the fact that the Dodge Charger does not seem to have any value as an exotic car and that it had been depreciating for nearly ten years since it had been purchased. It is not surprising to me that it had no value in 2022. I also note that there was no evidence to support that the value had deteriorated as a result of the manner in which it was stored. Given these facts, I am not prepared to provide Ms. Fatahi-Ghandehari with any set off on account of any alleged improper storage of the Dodge Charger.
53In providing a deduction for the costs of the improper storage of the Ferrari, it must be remembered that Mr. Siracusa provided Ms. Fatahi-Ghandehari with a discount on the storage costs. The facts cited at paragraphs 41-44 show that he could have charged in excess of $2,000.00 per month to store each car. However, he provided a discount for storage fees. I have set out my conclusions on this point in the previous section.
54Associated could have reasonably charged a great deal more than they did for the storage of both cars. While some deduction for the damage to the Ferrari is appropriate, it should not be the entire amount of the damage. That would result in a windfall to the parties because of the discount that Associated provided to them.
55Given all of these facts, I am of the view that a deduction of 20% of Associated’s invoice is appropriate. I reach that amount on the basis that the value of the Ferrari was reduced somewhere in the range of 20% as a result of the improper storage.
56It could be argued that this 20% deduction should be applied only to the costs of the Ferrari’s storage. However, the Dodge Charger was almost valueless at the time that it was taken into storage. The bulk of the costs, and the bulk of recovery in this case, relate to the Ferrari. Given that fact, it is appropriate to apply the 20% deduction to the entire invoice.
57I acknowledge that this is, to a certain extent, “rough and ready” justice. However, it represents a reasonable calculation of the damages. Further, given the amounts in dispute and the Court time that this litigation has consumed, it is appropriate to move this matter forward towards a resolution.
58Given the foregoing, the total costs that Associated shall recover for its storage is $36,810.88 inclusive of HST. I heard no argument from anyone as to why Associated should not be paid what it is owed. Therefore, these monies are to be paid out of Court.
59This brings me to Mr. Wilson’s argument that the money should not be paid out to Ms. Fatahi-Ghandehari. He argues that there are still outstanding actions between himself and Ms. Fatahi-Ghandehari and/or his mother and Ms. Fatahi-Ghandehari. The fact that there are outstanding actions does not change the fact that Ms. Fatahi-Ghandehari has a decision from this Court in the undefended trial entitling her to more than $1 million. The net amount that has been realized from the sale of the Ferrari is significantly less than that.
60Therefore, there are two reasons why I reject Mr. Wilson’s submission on this point. First, requiring Ms. Fatahi-Ghandehari to keep this money in Court would be akin to execution before judgment. The court has adjudged that the money is hers and she should be entitled to recover it. Second, it is not at all clear to me that any of the other actions have a basis for a recovery in excess of what Ms. Fatahi-Ghandehari obtained as a result of the undefended trial.
61For the foregoing reasons, the remainder of the money being held in Court is to be released to Ms. Fatahi-Ghandehari. Given the likelihood of an appeal of my decision, the Orders for paying out monies are effective thirty-one (31) days from the release of these reasons unless it is otherwise stayed by an appellate Court.
Other Issues
62There are three other issues in this matter that remain outstanding, as follows:
a) The calculation of interest on the outstanding costs that were dealt with by way of my decision on November 12th, 2021.
b) The costs for the argument on the Rule 60 motion brought by Ms. Fatahi-Ghandehari. I released my decision on this issue on November 12th, 2021
c) Mr. Scocco’s submission at the last hearing that I had failed to deal with Ms. Fatahi-Ghandehari’s Rule 60 motion.
63I will deal with each of these issues in turn.
a) The Calculation of interest on costs
64There was approximately $150,000.00 in outstanding costs that Mr. Wilson had not paid when I released my decision on November 12th, 2021. As part of that decision, I found that Ms. Fatahi-Ghandehari was clearly entitled to interest on the costs from the January 26th, 2018 decision of Price J. However, it was an open question as to both what the quantum of that interest should be and whether she should be entitled to interest on the other costs.
65I commenced a long criminal trial shortly before the November 12th, 2021 decision was released. As a result, the decision on this issue (and the costs from that hearing) was not released. I now turn to that issue.
66Ms. Fatahi-Ghandehari seeks total interest on the costs awards in the sum of $11,739.62. The actual amount is not set out in Ms. Fatahi-Ghandehari’s submissions. Instead, she has provided a calculation for each costs award separately. The Court was left to do the calculations on its own. There is also no information in Ms. Fatahi-Ghandehari’s November 2021 submissions identifying whether the costs awards relate back to the costs that I awarded in my decision.
67However, the Court must grapple with the issues before it. On close analysis, it appears that the tables of costs that Ms. Fatahi-Ghandehari has provided do not match the $153,368.98 set out at paragraph 83(b) of my November 12th, 2021 decision. The difference between the amounts flows from the fact that Ms. Fatahi-Ghandehari has included the costs that I awarded for the undefended trial and the marriage issue.
68In making this submission, Ms. Fatahi-Ghandehari has not considered paragraphs 29 and 30 of my decision in which I say that I am not dealing with the costs from the undefended trial and the marriage issue. The interest from those costs is not a matter that I invited submissions on. The claim for interest from those costs (of $271.48) will be excluded from any Order I make here.
69The rest of the amounts are calculated in accordance with the Courts of Justice Act, R.S.O. 1990 c. C.43. In Bon Rathwell Howland v. The Estate of Pamela Howland, 2019 ONSC 749, the Court found that it was appropriate to pay post-judgment interest on costs awards as well as management fees (see para. 52). I am of the view that the same conclusion should apply in this case and I so order.
70As a result, an Order shall issue requiring Mr. Wilson to pay interest on the unpaid costs awards in the amount of $11,468.14.
b) The Costs of the Rule 60 Motion
71I invited the parties to make submissions on the costs for the Rule 60 motion. I received submissions from Ms. Fatahi-Ghandehari in accordance with the timelines I set. I did not receive submissions from Mr. Wilson or his counsel. Ms. Fatahi-Ghandehari seeks costs in the sum of $14,175.85 on a substantial indemnity basis. This amount is inclusive of HST and disbursements.
72I acknowledge that substantial indemnity costs are a rare event, and are only awarded where there is either an offer to settle or where there is reprehensible or outrageous conduct. Davies v. Clarington, 2009 ONCA 722.
73In this case, I am satisfied that there has been reprehensible conduct on the part of Mr. Wilson. The costs awards went unpaid for many years. Mr. Wilson’s claims of impecuniosity were rejected by the Court on multiple occasions. These facts exist in the larger context of this case, which the Court of Appeal has referred to as a “procedural morass”. That procedural morass is largely of Mr. Wilson’s making. All of those grounds support an award of costs on a substantial indemnity basis.
74I also note that costs on the substantial indemnity basis of $14,175.85 are reasonable given both the complexity of this matter and the volume of material the parties and the Court have to consider on all of these motions. As a result, this quantum of costs is payable by Mr. Wilson within thirty (30) calendar days of today’s date.
c) Mr. Scocco’s Submissions on the Rule 60 Motion
75In the course of the hearing on September 19th, 2021, after correctly identifying that I had not released a couple of previous orders, Mr. Scocco also stated that I had not dealt with Ms. Fatahi-Ghandehari’s issues on the Rule 60 motion. This submission is not supportable.
76Ms. Fatahi-Ghandehari’s Rule 60.12 motion seeking to stay Mr. Wilson’s actions against her on the basis that he is a vexatious litigant and that he has failed to pay the costs orders that have been made throughout this litigation were before the Court in 2021. On November 12th, 2021, I released a detailed decision outlining that the request for a stay was denied as long as Mr. Wilson paid the outstanding costs awards within fourteen (14) calendar days. That money was duly paid by Mr. Wilson, and his outstanding fine for contempt was also paid.
77In the course of the hearing, when Mr. Scocco advanced his claim that I had not dealt with this issue, I expressed some concern with Mr. Scocco’s claim. Having completed the day’s business (which was the issue involving the bailiff) and satisfied myself that I had dealt with the Rule 60.12 issues, I adjourned Court. That afternoon, my judicial assistant received an e-mail entitled “Immediate Attention Required”. I would start by noting that, when counsel is addressing a judicial assistant they are addressing the Court. In light of that fact, stating that their matter requires immediate attention in a peremptory way is troubling. This is particularly true when the Court has, earlier that same day, declined to hear them further on the point.
78Mr. Scocco’s letter goes on to explain, in detail, why my dismissal of the stay motion on November 12th, 2021 does not amount to a determination of the Rule 60.12 matter. Mr. Scocco’s letter goes on to reference various parts of various transcripts as well as case-law and other issues. In Mr. Scocco’s view, I had not fully decided the Rule 60.12 motion. I disagree with these submissions.
79Mr. Scocco followed up by providing another copy of his September 19th, 2022 letter. In his e-mail dated October 11th, 2022, Mr. Scocco stated “I am instructed to ensure that the enclosed letter has been put before Justice LeMay. Kindly confirm that His Honour has received this letter.” Given the directives that I have provided the parties on out-of-court communications (which will be discussed below), this further communication was inapt, to put it mildly.
80One of the significant problems with this case is the fact that Mr. Wilson has been constantly re-litigating issues. Now, Ms. Fatahi-Ghandehari seeks to re-litigate the issue of the Rule 60.12 motion. In my view, the constant re-litigation of issues in this case is not helpful and should not be encouraged.
81For clarity, the Rule 60.12 matter is fully and finally concluded, at least on the basis of the facts that were before me when I made that decision on November 12th, 2022. I am not prepared to re-open that matter. I will now briefly review the submissions that Mr. Scocco made and why I reject them.
82First, I note that, in support of his submissions, Mr. Scocco seizes on what he views as an ambiguity in paragraph 41(a) of my reasons. The context of that paragraph needs to be considered. At that point in my reasons, I was addressing Mr. Wilson’s request for relief under Rule 59 and explaining why I was dealing with the Rule 60.12 matter first. In paragraphs 60 to 82 of my reasons, I went on to comprehensively address the stay motion. Ms. Fatahi-Ghandehari’s reliance on paragraph 41(a) of my reasons is an improper attempt to re-litigate an issue that has been decided.
83Second, Mr. Scocco argues that my failure to deal with either the costs issues or the interest issue suggests that I was leaving the Rule 60.12 matter open. Again, I reject this submission. The failure to deal with the costs and interests issues was an oversight on my part. It was not an opportunity to re-litigate the matter I had already determined.
84Third, in his letter, Mr. Scocco states that he could not find any wording that the Rule 60 motion was “dismissed” or “rejected” or “granted”. I thought that paragraphs 6 and 7 of the decision requiring Mr. Wilson to make costs payments within fourteen days or his action would be permanently stayed would have explained my disposition of the motion. Similarly, paragraph 58, which immediately follows Issue #3- Should a stay be granted and says “I have reluctantly concluded that Mr. Wilson should be permitted one final opportunity to comply with the costs orders that have been made against him” was also a clear indication of my disposition of the motion. There are other places where I make the disposition of the motion clear.
85Finally, Mr. Scocco refers to my mention of the June 15th, 2021 hearing. I read a passage from that decision when I was advising Mr. Scocco that I had dealt with the matter. While the June 15th, 2021 decision does not deal with the substance of the Rule 60 matter, it sets out the process for doing so. The Rule 60 motion was fully adjudicated by way of my reasons on November 12th, 2021. The process set out on June 15th, 2021 was part of that full adjudication.
86Given these points, I am not prepared to consider the matter of Ms. Fatahi-Ghandehari’s Rule 60 motion further. It would be a waste of Court resources to do so.
87One of the concerns that this issue, and the manner in which it came before me, raises is that Mr. Scocco corresponded with my judicial assistant twice about this issue, wanting to make further submissions and wanting to ensure that I had dealt with these submissions. I have already noted my concerns about the peremptory nature of that correspondence, but repeat them here to ensure that the scope of my concern is fully understood.
88I have advised the parties on numerous occasions that they are, for the most part, not permitted to communicate with my judicial assistant outside of Court. Only specific, identified exceptions are permitted. The parties have also been reminded of these directions on numerous occasions and, as I said in my July 31st, 2021 endorsement, that “breaches of them will be viewed as a matter for a contempt hearing.”
89One of my more recent directives about communications from counsel was issued on May 20th, 2022. At that point, Mr. Scocco was involved in this file and attending Court. He was provided with a copy of that endorsement, which stated that “[a]ll counsel and parties are reminded of my previous directions in respect of contact. To confirm, counsel and parties are only permitted to contact my judicial assistant to advise as to their availability next week.” Given the previous warnings in my endorsements dating back to August of 2020, this should have been a clear indication of my expectations, even to counsel who was relatively new on the file.
90Mr. Scocco’s correspondence, and his effort to follow up on it, requires me to make my directions crystal clear. In addition, my judicial assistant received a communication from Ms. Fatahi-Ghandehari last week inquiring as to when my decision in this matter would be released. Let me be clear that ANY submissions or requests made outside of Court, other than ones that have been solicited by the Court, will be viewed as a matter for a contempt hearing. Regular appearances are being scheduled in this matter and the parties will have to wait to deal with issues until the next scheduled appearance. We will canvass the issue of raising potentially urgent matters at the next hearing as well as the process for scheduling and changing dates.
91This brings me to a recent communication I had from counsel for the Law Society of Ontario. While I am sure that Mr. McKellar, counsel for the Law Society, did not intend to breach my directive on communications when he sent me his draft motion materials, I am constrained to apply this directive to him and his client as well going forward. I acknowledge that Mr. McKellar’s communication was helpful for the purposes of planning the next case conference. However, given the abandon with which everyone else involved in this litigation writes to my judicial assistant, I must put a hard stop to such communications from any party. To be clear they are to cease.
92I note that Mr. Scocco has asked for other relief as well in his letter of September 19th, 2022. These requests are also improperly before the Court and are dismissed on that basis. This dismissal is without prejudice to re-raise the issues properly at our next case conference.
Conclusion and Costs
93For the foregoing reasons, I am ordering as follows:
a) The sum of $36,810.88 is to be paid out of Court to Associated Bailiffs and Co. Ltd. This money is to come from the funds being held in Court from the sale of the Ferrari.
b) The remainder of the money paid into Court on account of the sale of the Ferrari is to be paid out to the Applicant, Ms. Fatahi-Ghandehari.
c) The payments in paragraphs (a) and (b) are not to be made for thirty-one (31) days after the release of these reasons.
d) The Respondent, Mr. Wilson is to pay the sum of $11,468.14 on account of the interest on the costs that were outstanding and not the subject of potential further proceedings pursuant to the decision of November 12th, 2021. These amounts shall be paid within thirty (30) days of today’s date.
e) The Respondent, Mr. Wilson, is to pay costs for the Rule 60.12 motion in the sum of $14,175.85 inclusive of HST and disbursements. Again, these amounts shall be paid within thirty (30) days of today’s date.
f) The Applicant, Ms. Fatahi-Ghandehari’s, request to re-open the Rule 60.12 matter is dismissed.
g) The other relief sought by way of Mr. Scocco’s letter of September 19th, 2022 is dismissed without prejudice to the ability to raise these issues properly at our next case conference.
94Success on the main issue appears to have been divided in this matter. The parties are encouraged to discuss the issue of legal costs between them. However, in the event that they are unable to agree on them, then the schedule for costs submissions is as follows:
a) Any party seeking costs is to provide their submissions by December 12th, 2022. Those submissions are to be no more than two (2) single-spaced pages exclusive of bills of costs, offers to settle and case-law.
b) Any party who costs are being sought from shall have the right to file a reply by December 22nd, 2022. Those submissions are also to be no more than two (2) single-spaced pages exclusive of bills of costs, offers to settle and case-law.
95Costs submissions are to be uploaded to CaseLines and a copy is to be provided to my judicial assistant. Both methods of filing are required. The costs submissions are to be strictly limited to the issue of costs for this part of the proceeding. Any other communications will run afoul of my directives in paragraphs 90 and 91.
96There are to be no extensions to the time limits for costs submissions, even on consent, without my leave. If I do not receive costs submissions in accordance with the timetable, there will be no costs for this portion of the proceeding.
LEMAY J
Released: December 1, 2022