COURT FILE NO.: FC-21-56636 DATE: 2023/05/24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

NAHID SULTANA Applicant – and – ABU SALEHIN Respondent

Counsel: Anna Towlson, Counsel for the Applicant Poroshad Mahdi, Counsel for the Respondent

HEARD: February 7,8,9,10,11,14,15 and 16, 2022 WRITTEN FINAL SUBMISSIONS: March 25, April 8 and April 14, 2022

GIBSON J.

ENDORSEMENT

Overview

[1] The applicant Nahid Sultana (“the Applicant”) and the respondent Abu Salehin (“the Respondent”), were married in Bangladesh in 1996. They then resided in the capital city of Dhaka at a building with the address of 1/3, Block A, Lalmatia, Dhaka, Bangladesh. They immigrated to Canada together in 2001. They are both now dual citizens of Canada and Bangladesh.

[2] The Applicant commenced these proceedings by an application dated December 5, 2017. A trial was held in February 2022. Final written submissions were made by the parties in March and April 2022. My reasons for judgment in this matter, 2023 ONSC 118, were released on January 5, 2023.

[3] Both parties claimed the other owns real property in Bangladesh. Both parties deny that they do so. Most of the time at trial was focused on this issue.

[4] Both parties obtained, produced and submitted voluminous documentation in this proceeding that sought to prove that the other owns real property in Bangladesh. Each party claims that their documentation is authentic, and alleges that the other’s documents are false and were fraudulently obtained.

[5] Both parties engaged experts to report on the authentication of the documents. The Applicant engaged an expert, Ms. Jahan, to report on the authentication of both parties’ documents. The Respondent engaged an expert, Mr. Miah, to report only on the Applicant’s documents.

[6] The applicable standard of proof regarding these documents is on the balance of probabilities. However, even on this standard, there were insufficient indicia of authenticity and reliability to make findings of fact regarding the ownership of property by either party in Bangladesh.

[7] I was not persuaded by either party that the evidence is sufficiently reliable to do so.

[8] I found that neither party had demonstrated to the requisite standard of proof that the other currently owns property in Bangladesh.

[9] In my reasons for judgment, the parties were encouraged to agree upon appropriate costs. If the parties were not able to agree on costs, I directed that they might make brief written submissions to me.

[10] The Applicant provided submissions on costs dated January 19, 2023. The Respondent provided costs submissions dated February 2, 2023. On February 9, 2023, the Applicant provided an (undated) “Final Reply on the Issue of Costs”.

[11] On February 8, 2023, the Applicant served a Notice of Motion dated February 8, 2023, seeking an Order to reopen the trial to permit the Applicant to call fresh evidence she submits was not available at the time of trial establishing that the Respondent is a current owner of 1/3, Block A, Lalmatia, Dhaka. Accompanying this was an Affidavit of the Applicant dated February 8, 2023. The Applicant has since sought to present further affidavit material. The gist of this material relates to further efforts by Ms. Jahan to obtain land registry and tax documents in Bangladesh, purporting to demonstrate the Respondent’s ownership interest in property in Bangladesh.

[12] The Applicant appears to take the position that I am not functus given that she filed her motion to re-open the trial on February 8, 2023, one day before filing her “Final Reply Submission on Costs.” The Respondent opposes the request to re-open the trial.

Issues

[13] The issues now before me are:

1. Should the trial be re-opened to permit the Applicant to call fresh evidence regarding a property in Bangladesh?
2. If not, what costs Order should be made in respect of the trial and motion proceedings?

Law and Analysis

[14] In a case having some parallels with the instant case, Abu-Shaban v. Abu-Shaaban, 2021 ONSC 3623, M. Smith J. was required to consider, in the context of a case in which one of the main issues at trial dealt with equalization of net family property and the expert opinion evidence presented by the parties regarding property in Gaza, whether the Court should grant one of the parties’ motion to provide fresh evidence regarding the Gaza property.

[15] At paras. 23-36 Justice Smith stated:

[23] The Family Law Rules, O. Reg. 114/99 does not address the request to reopen the trial to file new evidence. Rather, one needs to turn to r. 52.10 (a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) which provides the following authority:

FAILURE TO PROVE A FACT OR DOCUMENT

52.10 Where, through accident, mistake or other cause, a party fails to prove some fact or document material to the party’s case,

(a) the judge may proceed with the trial subject to proof of the fact or document afterwards at such time and on such terms as the judge directs;

[24] Subrule 53.01(3) of the Rules permits a trial judge to recall, at any time, a witness for further examination.

[25] In Malkov v. Stovichek-Malkov, 2018 ONCA 620, the Ontario Court of Appeal affirmed the factors to consider when entertaining a party’s request to reopen the case, as originally set out in Catholic Children’s Aid Society of Toronto v. M.R., 2014 ONCJ 762, 64 R.F.L. (7th) 470, at para. 17:

• At what stage of the trial is the motion made?
• Why was evidence not adduced during the party's case? Did the party intentionally omit leading the evidence earlier? Or did the evidence only recently come to the party's attention, despite diligent earlier efforts?
• What is the prejudice to the defendant? A defendant might have conducted his case differently if he had known and had an opportunity to investigate the evidence which is the subject of the motion.
• Can any prejudice be remedied in costs?
• How would a reopening of the case affect the length of the trial? How much evidence would have to be revisited?
• What is the nature of the evidence? Does it deal with an issue which was important and disputed from the beginning, or with a technical or non-controversial point?
• Does it merely "shore up" evidence led in chief?
• Is the proposed new evidence presumptively credible?

[26] The need for finality is paramount, especially when a decision has been rendered and judgment entered. If a case has not yet been decided, fairness and truth-seeking should be considered over finality. When a decision is pending and has not been made, the test for admitting fresh evidence does not include whether the fresh evidence could affect or have an influence on the result: Brasseur v. York, 2019 ONSC 4043, at paras. 38 and 45.

[16] Applying the factors set out in Abu-Shaban and in Malkov to the present case, I assess that the motion to re-open the case to permit the filing of fresh evidence has been made very late in the process, after the decision at trial has been made, the reasons for decision released, and the bulk of submissions have already been made as to costs. It is evident that better evidence was not adduced during the party’s case at trial because the Applicant did not invest the effort to do so in her trial preparation. The Applicant appears to be trying to have “another kick at the can” subsequent to the release of my decision at trial finding that the evidence was insufficiently reliable to be relied upon.

[17] There would be significant prejudice to the Respondent if this fresh evidence was allowed to be introduced, as he might have conducted his case differently if he had known and had an opportunity to investigate the proposed evidence which is the subject of the motion. This is not a prejudice that can be remedied in costs.

[18] Re-opening the trial after it has been concluded to consider this proposed fresh evidence would result in essentially re-doing most of the trial. A “Mulligan” is not appropriate here.

[19] Given my earlier findings of fact at trial, I do not consider the proposed new evidence to be presumptively credible.

[20] As Smith J. stated in Abu-Shaban, the need for finality is paramount, especially when, as in this case, the case has been decided and a decision has been rendered.

[21] Taken altogether, I do not consider that the ends of justice would be served by re-opening the trial to permit the filing of the fresh evidence sought by the Applicant. The Applicant’s motion is dismissed.

[22] I will now consider the costs submission of the parties.

Costs

The positions of the Parties

[23] The Applicant submits that, given the bad faith demonstrated by the Respondent, she should be entitled to costs on a full recovery basis pursuant to Rule 24(8) of the Family Law Rules. She seeks costs in the amount of $50,000 plus HST, in respect of the trial and of the motion heard on February 25, 2019, for which costs were reserved to the trial judge.

[24] The Respondent refutes the applicant’s claim for success at trial, submitting that the outcome came close to his Offers to Settle. He seeks his costs in the amount of $80,000.

Law of Costs

[25] Rule 24(1) of the Family Law Rules provides that there is a presumption that a successful party is entitled to costs of the proceeding.

[26] Modern costs rules are designed to foster three fundamental purposes: to partially indemnify successful litigants for the costs of litigation; to encourage settlement; and to discourage and sanction inappropriate behaviour by litigants: Serra v. Serra, 2009 ONCA 395. A fourth factor is to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867. The factors that a court may consider in setting costs are set out at Rule 24(12) of the Family Law Rules. The reasonable expectation of the unsuccessful party can assist in determining an amount that is fair and reasonable. Costs awards, at the end of the day, should reflect what the Court views as a fair and reasonable amount that should be paid by the unsuccessful party. Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs: Beaver v. Hill, 2018 ONCA 840.

Assessment regarding costs

[27] There will be no costs awarded in respect of the Applicant’s motion to re-open the case.

[28] The litigation conduct of the Respondent undermines his claim to costs for this trial. In my decision at trial, I found that “the evidence presented by the respondent regarding the purported evidence of the applicant’s ownership of property in Bangladesh was a stew of confusion, obfuscation and deceit.” I further found that “the documents presented by the respondent are entirely unreliable” and that some had “the whiff of fraud.”

[29] I agree with the Applicant’s suggestion that $50,000 is a reasonable costs award to her based on the appropriate principles, while the respondent’s claim for $80,000 finds no foundation in the outcome of the trial or the relevant principles regarding costs, particularly having regard to his litigation conduct and my findings at trial.

Order

[30] The Court Orders that:

1. The applicant’s motion to re-open the trial to permit the introduction and consideration of fresh evidence is dismissed; and
2. With regard to the trial and the previous motion heard on February 25, 2019, the Respondent Abu Salehin shall pay costs to the Applicant Nahid Sultana fixed at $50,000 all-inclusive.

M. Gibson J. Date: May 24, 2023