COURT FILE NO.: FS-15-83320-0000
DATE: 2023 04 04
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 and P. Robson
Respondent
Elizabeth Wilson
K. Lewis, for Elizabeth Wilson
R. Watson, for the Braidmore parties (not appearing)
Abrahams LLP
Bradley Phillips, for the Abrahams LLP parties (not appearing)
HEARD: March 28, 2023
REASONS FOR JUDGMENT
LEMAY J
[1] This matter has been before the Courts since early 2015. I have been case managing this matter since 2020. It is a complicated and acrimonious matter where there are a number of actions ongoing between the parties. It has been the subject of a number of decisions, both of this Court and of the Court of Appeal.
[2] The most significant series of decisions concerned the undefended trial that was ordered in this matter by Price J. many years ago. I released the decision in that undefended trial in May of 2021 (see 2021 ONSC 3547). That decision was the subject of further litigation, both before me and before the Court of Appeal. The Respondent, Stewart Wilson, appealed the undefended trial decision as well as a subsequent decision I made declining to set aside that decision.
[3] The Court of Appeal’s most recent decision (2023 ONCA 74) determined that the Respondent’s appeal of the undefended trial decision was an abuse of process. This decision was made under Rule 2.1.01(3) of the Rules of Civil Procedure. The Court of Appeal also expressed concerns with the pace of the litigation (see paragraph 3).
[4] In a case management conference in February of this year, I advised the parties that it was my view that the Court of Appeal’s decision clarified which issues in the litigation were still outstanding and, more importantly, which issues were no longer outstanding. With that background in mind, I received submissions from the parties as to what issues still remained and how the rest of the litigation should be resolved. I provided some contingent directions at the hearing on March 28th, 2023. The purpose of this decision is to set out those directions and the reasons for them.
The Parties
[5] In order to understand my directions, it is important to know who the parties to this litigation are. The Applicant, Sara Fatahi-Ghandehari and the Respondent, Stewart Wilson were married on August 12th, 2007 and separated on December 4th, 2014. This litigation commenced almost immediately thereafter.
[6] Mr. Wilson runs a business renting out exotic cars. He has run this business since before his marriage to Ms. Fatahi-Ghandehari, and I understand he continues to run this business. Mr. Wilson has previously filed for bankruptcy, and the bankruptcy action was ongoing at times during and after the marriage.
[7] Ms. Fatahi-Ghandehari worked in the business prior to the separation. As far as I am aware, she has not worked since.
[8] Ms. Elizabeth Wilson is Mr. Wilson’s mother. Her involvement in this litigation flows from the fact that she has legal title to the property where Mr. Wilson lives. She has also “purchased” actions from Mr. Wilson (or his trustee in bankruptcy). I have put quotation marks around purchased because I do not yet have the precise details of this transaction. Finally, there are related claims between her and Ms. Fatahi-Ghandehari.
[9] Mr. Jason Braidmore was one of Mr. Wilson’s business partners at one point. Some of his assets subject to a preservation order as they appear to be assets that are beneficially owned by Mr. Wilson. In addition, there is an action between Mr. Braidmore and Mr. Wilson.
[10] There have been numerous allegations of fraud and other related claims. The fraud claims made against Ms. Fatahi-Ghandehari in the matrimonial action have been fully and finally determined. That is one of the effects of the Court of Appeal’s most recent decision.
[11] It also appears to me that this finding may affect the rest of the litigation between the parties. In particular, even though Ms. Wilson has “purchased” the rights of Mr. Wilson in some actions, it appears that those rights may be limited to the rights that Mr. Wilson had which, in turn, might be limited by the Court of Appeal’s decisions. Determining the effect of the Court of Appeal’s decisions on the scope of the outstanding actions will help clarify the path to resolving this litigation.
[12] I should also note that I raised the issue of Ms. Elizabeth Wilson’s standing to participate in these actions with the parties at the appearance on March 28th, 2023. Ms. Elizabeth Wilson was seeking standing to participate in this action. Her standing to participate was opposed by Ms. Fatahi-Ghandehari. I concluded that Ms. Elizabeth Wilson should have the right to participate in this action on the basis that her rights will likely be affected by the Court’s determinations.
[13] Specifically, I would note:
a) Ms. Wilson has legal title to a property in the Niagara area and one of the key arguments is that Stewart Wilson is the beneficial owner of this property.
b) Ms. Wilson claims to have purchased Mr. Wilson’s rights to various parts of the actions in this case.
[14] As a result, I have given Ms. Wilson the right to participate in the case management conferences as well as certain rights to file materials. I will describe those rights in more detail below.
[15] I will now briefly summarize the outstanding litigation.
The Outstanding Litigation
[16] In my decision of May 26th, 2021 (see 2021 ONSC 3708) I provided a brief description of the outstanding actions. That description is as follows:
a) CV 118/15- this is an action that was brought in Milton by Stewart Wilson against a number of parties. It was referred to by Mr. Robson and Mr. Chhina as the ‘seminal action’ in the course of argument. While it may be the seminal action that is left, there is also an argument that the matrimonial litigation itself is the “seminal” action.
b) CV 2021/16- this is an action that was brought in Milton by Ms. Fatahi-Ghandehari to recover funds used to purchase particular assets that were allegedly owned by Mr. Wilson and a corporate entity.
c) CV 985/17- this is an action that was brought by Mr. Wilson seeking damages against Ms. Fatahi-Ghandehari from an allegedly false criminal complaint that was lodged by Ms. Fatahi-Ghandehari with the police.
d) CV-19-628418- this is an action commenced in Toronto by Mr. Wilson against Mr. Braidmore and various other parties.
e) CV-161/17 is an action brought by Mr. Stewart Wilson against Ms. Fatahi-Ghandehari’s former law firm, Abrahams LLP and one of its partners. This action claims, inter alia, fraud on the part of the lawyers.
f) CV-17-0550-00 this action, incorrectly recorded in my May 26th, 2021 decision as CV-17-0050-00, is a Brampton action that was brought by Ms. Fatahi-Ghandehari. It was brought against various defendants, including Mr. Robson, Mr. Wilson and Mr. Watson, Mr. Braidmore’s counsel.
[17] I will now set out the directions that I have provided in terms of managing each of these actions at this point.
CV-118/15- The “Seminal” Action
[18] In my view, an important first step is to delineate the scope of what remains of this action. Based on the submissions of Ms. Fatahi-Ghandehari, I understand that the issues of res judicata and abuse of process are going to be raised as potential bars that prevent either all, or a significant portion of the action, from proceeding. I also understand that the Wilson parties will challenge this argument. In my view, these issues should be placed before the Court by way of a motion.
[19] There was some discussion of whether the proper motion to address these issues was a Rule 20, 21 or 25 motion. In my view, it is a Rule 21 motion for the following reasons:
a) The question of the overlap between the pleadings in the “seminal action” and in the family law proceeding is more a question of law than of fact.
b) The Court of Appeal has been clear that this action has been languishing for some considerable time. If it is possible to dispose of this action by way of a Rule 21 motion (which will not require cross-examinations on Affidavits), that will be a more efficient use of Court resources.
c) Permitting full cross-examinations before the scope of the action is properly delineated runs the risk that parties engage in cross-examinations that go well beyond the scope of the evidence necessary to determine the scope of the remaining issues.
[20] As a result, I am establishing the following timetable for this Rule 21 motion:
a) The moving party for this motion will be Ms. Fatahi-Ghandehari. Her materials are to be served and filed by May 19th, 2023.
b) Any responding materials are to be served and filed by July 4th, 2023. For clarity, Ms. Wilson is entitled to file responding materials on this motion.
c) I did not originally give the moving party a right of reply. Any reply materials may be served and filed by July 21st, 2023.
d) The materials to be filed on this motion must include the complete pleadings from the seminal action and the pleadings from the matrimonial action. The materials must also include copies of any decisions that a party wishes to rely upon. The materials can, but do not have to, include Affidavits that have already been filed with the Court.
e) For clarity, new Affidavits other than an Affidavit attaching the pleadings and the decisions, may not be filed by ANY party on this motion.
f) Factums must be served and filed at least fourteen (14) days before the date set for hearing the motion.
g) All materials must be bookmarked and cases must be hyperlinked.
h) Finally, for filing all materials must be uploaded to CaseLines and emailed to my judicial assistant. BOTH methods of filing are required.
[21] In addition to the motion on the scope of the seminal action, there is the question of the scope of Ms. Elizabeth Wilson’s right to participate in this action and the scope of her rights in this action more generally. To that end, her counsel is also going to move under Rule 21 for directions from the Court on this point.
[22] The timetable and directions for the motion being brought by Ms. Elizabeth Wilson are as follows:
a) The moving party for this motion will be Ms. Elizabeth Wilson. Her materials are to be served and filed by May 19th, 2023.
b) Any responding materials are to be served and filed by July 4th, 2023. For clarity, Mr. Stewart Wilson is entitled to file responding materials on this motion but only in respect of any differences he may have with the position or facts taken by Ms. Elizabeth Wilson.
c) Again, I had not provided a right of reply. The moving party may file reply submissions by no later than July 21st, 2023.
d) The pleadings from the seminal action and the pleadings from the matrimonial action do not need to be filed on this motion as I have required them to be filed on the other motion and both motions will be considered at the same time. Any decisions being relied upon by a party must be filed. The materials can, but do not have to, include Affidavits that have already been filed with the Court.
e) For clarity, new Affidavits other than an Affidavit attaching the decisions, may not be filed by ANY party on this motion with one exception. The exception is that any documentation illustrating Ms. Wilson’s purchase of the actions from the Trustee in Bankruptcy are to be filed.
f) Factums must be served and filed at least fourteen (14) days before the date set for hearing the motion. The factums on this motion must be separate from the factum
g) All materials must be bookmarked and cases must be hyperlinked.
h) Finally, for filing all materials must be uploaded to CaseLines and emailed to my judicial assistant. BOTH methods of filing are required.
[23] For clarity, no party is permitted to cross-examine another party on their Affidavits (either current or historical) without my leave. It is unlikely that leave will be given. We will address that issue at a case management conference in late July.
Action CV-2021/16
[24] This action is a claim brought by Ms. Fatahi-Ghandehari against Mr. Wilson to recover funds. This action should be deferred until the scope of the seminal action is determined.
Action CV-985/17
[25] Mr. Wilson is asking to have this action dismissed. He is of the view that the dismissal should be without costs. Ms. Fatahi-Ghandehari does not oppose the dismissal of this action, but is seeking costs of the action.
[26] The action will be dismissed. The timetable for costs submissions is as follows:
a) Costs submissions from Ms. Fatahi-Ghandehari must be served and filed by April 14th, 2023. Those submissions are to be no more than three double spaced pages, exclusive of case-law, bills of costs and offers to settle.
b) Costs submissions from Mr. Wilson must be served and filed by April 24th, 2023. Those submissions are to be no more than three double spaced pages, exclusive of case-law, bills of costs and offers to settle.
c) Reply submissions are neither requested nor permitted. Submissions are to be both uploaded to CaseLines and provided to my judicial assistant.
[27] None of the other parties are part of this action, and none of them are permitted to make submissions on the costs of this action.
The Wilson/Braidmore Action
[28] Counsel for both Mr. Wilson and Mr. Braidmore sought to have me return this action to the commercial list in Toronto. I denied that request for the following reasons:
a) The issues in the action between Mr. Wilson and Mr. Braidmore concern, inter alia, the ownership of vehicles that may be implicated in the matrimonial action.
b) Given the potential overlap between the issues in the various cases, it is a more efficient use of judicial resources to ensure that the cases are all managed by the same judge in the same judicial centre.
c) The ownership of these vehicles have already been the subject of various orders, including preservation orders, from Price J. Permitting this action to be pursued in a different jurisdiction could result in inconsistent proceedings.
[29] As a result, the parties involved in this action (Mr. Wilson, Ms. Wilson and the Braidmore parties) are to agree on a timetable by April 11th, 2023. If there is no agreement on a timetable in this action, then the parties may advise Ms. Chen of a disagreement. Counsel are also permitted to file their proposed timetables without argument. I will schedule a case management conference on this issue.
[30] There are some further directions in respect of this matter. Some of these were discussed in our case management conference and some were not. Those directions are:
a) Counsel is to advise all parties involved in the litigation, in writing, as to whether Ms. Lewis or Mr. Robson is representing Ms. Wilson in this part of the litigation.
b) The action cannot be settled without Court permission or a further Order of the Court. More specifically, no rights can be surrendered by Mr. Wilson and no payments can be made by Mr. Braidmore without the Court’s involvement.
[31] Once the timetable is provided by the parties, I will consider what steps should be taken next.
The Action Against Abrahams LLP and Mr. Siddiqui
[32] This is the action brought by Mr. Wilson against Ms. Fatahi-Ghandehari’s former lawyers. They are represented by Bradley Phillips. I suspect that there was a miscommunication with Mr. Phillips office, as he did not attend the March 28th, 2023 case management conference. However, based on his written submissions, it appears that he is arguing that this action should be dismissed on a number of grounds.
[33] Having contemplated this matter, I am of the view that I should obtain submissions from Mr. Phillips on what the next steps in this action should be. To that end, a case conference will be scheduled in May, and I have outlined proposed dates below.
Ms. Fatahi-Ghandehari’s Action Against the Lawyers
[34] Ms. Fatahi-Ghandehari has also brought an action against the lawyers who have been representing the Respondent and his mother, Ms. Elizabeth Wilson.
[35] In the course of the discussion, it came to light that counsel for Elizabeth Wilson, Ms. Lewis, was not aware of this action as it had not been served on her. Ms. Fatahi-Ghandehari expressed a desire to amend this action to include both Ms. Lewis and Mr. Chhina within it.
[36] I expressed significant concerns with this action. Having reflected on it over the past few days, those concerns remain significant. They are as follows:
a) The lawyers all have an obligation to report any allegations of negligence or other actions such as what are alleged to LawPRO promptly. This means that they have to report those allegations immediately, if they haven’t already done so.
b) There may be a conflict between the interests of the clients and the interests of counsel in this litigation as long as the action against counsel remains outstanding.
c) The Courts should not lightly interfere with the right of a party to choose their counsel.
[37] Given all of these observations, I advised that I was of the view that this action, if it was proceeding, would have to be dealt with first and that virtually everything else in this matter would have to wait until this action was disposed of. I then directed that Ms. Fatahi-Ghandehari was to provide correspondence within seven (7) calendar days as to whether she wished to continue with this action. I adjusted the time limits for the remaining steps I had outlined above back seven days, and the adjusted time limits are set out above.
[38] I duly received correspondence from Mr. Scocco on Friday. It was significantly longer than I anticipated, as I had expected a letter that simply identified whether Ms. Fatahi-Ghandehari still intended to pursue this action, given my observations that this action needed to be dealt with before most of the rest of the outstanding issues.
[39] Instead, what I received was an explanation as to why the claim was meritorious. It concluded with the request that the action be dismissed without costs and that the Court acknowledge that it was being dismissed without costs, and that the dismissal was only because the action had not been pursued in a timely way.
[40] From my perspective, this is an appropriate disposition of this claim. In that respect, I would note the following:
a) The existence of this action serves to both complicate and delay the underlying issues between the parties.
b) The manner in which Mr. Wilson and his counsel Mr. Robson have conducted this litigation has come in for criticism by Price J., Daley J., myself and various panels of the Court of Appeal.
c) Mr. Watson has not participated in this litigation in any meaningful way and has not been required to expend any significant resources on it.
d) Similarly, Ms. Lewis and Mr. Chhina had not been aware that they might be added to this action until the case conference last week. They have not been required to expend any resources on it.
e) The issues in this part of the litigation seem to me to be better addressed by the Law Society. In that respect, I note that Mr. Scocco’s letter makes significant reference to the Rules of Professional Conduct.
[41] As a result, unless one of the Defendants in Court File No. CV-17-0550 objects in writing, with the letter both uploaded to CaseLines and provided to my judicial assistant by 4:30 p.m. on Tuesday, April 11th, 2023, the action will be dismissed without costs and without prejudice to Ms. Fatahi-Ghandehari’s rights to raise these issues either as part of her abuse of process arguments in respect of her claims against the Respondent Stewart Wilson, Ms. Elizabeth Wilson or Mr. Braidmore or as part of a proceeding before the Law Society.
[42] The previous paragraph notes that one of the Defendants may object to my proposed disposition of this action. Three points of clarification in terms of this direction:
a) The correspondence indicating an objection is to be limited to one sentence advising that the party objects.
b) The objections will be dealt with at our next case conference and will NOT delay the other steps I have set out above. In other words, the timetable continues to apply and materials must be prepared in accordance with the timetables even if there is an objection.
c) Neither Ms. Lewis nor Mr. Chhina are entitled to make any submissions on the disposition of this action, as they are not parties to it.
[43] In the absence of a clear objection from one of the Defendants by 4:30 p.m. on April 11th, 2023, the Order set out in paragraph 43 shall issue.
The Status of Counsel
[44] During the course of the hearing on March 28th, 2023, Mr. Scocco provided submissions on behalf of Ms. Fatahi-Ghandehari, even though he is not officially on the record for her. He has been doing this throughout the proceeding. Mr. Chhina has been doing the same.
[45] I have provided a direction to the Wilson parties that they must identify counsel for Ms. Wilson on the Braidmore action. At our next case conference, I will be reviewing the issue of who is representing whom more generally.
[46] Part of the reason that we will be reviewing this issue is that Ms. Fatahi-Ghandehari has regularly asserted that she is “self-represented” in this case. However, she has been assisted by counsel at every appearance. I am of the view that the claim of self-representation is unjustified on what the Court has seen of the action to date, and I am minded to require Mr. Scocco to regularize his involvement in this case by coming on the record.
Conclusion and Next Steps
[47] I have set out the next steps in the materials above. The parties have been invited to provide submissions on specific issues. Their permission to communicate with my judicial assistant is strictly limited to those issues and to scheduling and nothing more. There is also nothing in this case that would justify an urgent communication at this point.
[48] The parties are to schedule three dates. First, there is a case management conference to be scheduled to discuss the Abrahams action. The parties are to advise of their availability for a 9:15 a.m. appearance the week of May 15th, 2023. I am available all days except Wednesday.
[49] Second, there will be a check-in for thirty minutes by ZOOM on the week of All parties and counsel MUST make themselves available for a ZOOM call that week, and are to advise Ms. Chen as to their availability for a 9:15 a.m. appearance that week.
[50] Third, there will be a motion hearing to deal with the two motions on the “seminal” action. I can offer the parties September 11th, October 10th or November 14th, 2023 for this hearing. The parties are expected to make themselves available for one or two of these dates. If the parties are not available, I will simply set a date. This hearing is to be in-person in the Brampton Courthouse. All counsel and parties are expected to attend in person.
[51] The costs of the appearance on March 28th, 2023 are reserved to the conclusion of the action.
LEMAY J
Released: April 4, 2023
COURT FILE NO.: FS-15-83320-0000
DATE: 2023 04 04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sara Fatahi-Ghandehari
Applicant
- and -
Stewart Wilson
Respondent
REASONS FOR JUDGMENT
LEMAY J
Released: April 4, 2023