Court File and Parties

COURT FILE NO.: CV-05-299825-0000 DATE: 20230106 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Valentina Avdeeva, Plaintiff/Moving Party AND: Caroline Khoushabeh, in her capacity as estate trustee for the estate of Levon Khankaldiyan a.k.a. Levon Khankaldiyan Haftvan, deceased, Defendant/Responding Party

BEFORE: Justice Chalmers

COUNSEL: R. Thapar for the Plaintiff D. Wagner for the Defendant

HEARD: January 6, 2023, by videoconference

Endorsement

Overview

[1] The trial in this matter is scheduled for 8 days without a jury commencing January 9, 2023. The Plaintiff brings this motion to adjourn the trial.

[2] The Plaintiff argues that the adjournment request arises out of the fact that on December 7, 2022, the Defendant delivered a Supplementary Affidavit of Documents containing 147 documents that had not been previously produced. The Plaintiff argues that additional time is needed to review and consider the documents and to conduct an examination of the affiant. The Defendant opposes the adjournment. It is the Defendant’s position that the estate trustee has no information about the additional documents and therefore a further examination will not yield any relevant evidence. Counsel for the Defendant states that the request for an adjournment is consistent with the Plaintiff’s conduct in delaying the action.

Factual Background

[3] This action was commenced more than 17 years ago on November 9, 2005. The subject matter of the claim concerns events that occurred in 2001. There have been concerns about delay in how the action has proceeded. Several judicial officers have expressed concern about the failure to expeditiously move the matter forward.

[4] The Plaintiff set the action down for trial on December 21, 2021. The pre-trial conference took place on November 2, 2022. At the time of the pre-trial conference, both parties indicated that the documentary and oral discoveries were complete and that the parties were ready to proceed to trial. The trial date of January 9, 2023 was confirmed at the pre-trial.

[5] Approximately one month after the pre-trial, on December 7, 2022, the Defendant delivered a supplementary affidavit of documents containing 147 documents that had not previously been disclosed. The Defendant must have been of the view that the documents were relevant; there is no need to produce irrelevant documents. As noted, no mention was made of additional documents at the pre-trial conference, which had taken place approximately one month before.

[6] The Defendant explained that the documents had not been produced earlier because the estate trustee did not know what the issues were in the action and therefore could not determine the relevancy of the documents. This explanation is not, in my view, satisfactory. The documents apparently came into the possession of the estate trustee, Caroline Khoushabeh after Mr. Haftvan’s death more than 4½ years ago. She has been involved in the action in the period since his death and therefore must have been aware of the matters in issue. I note that she delivered the answers to the undertakings on October 30, 2019. She must have had knowledge of the matters in issue when the answers to the undertakings were delivered.

[7] The new documents include voluminous materials such as bank and credit card statements which include 1,000s of entries. Some of the documents are not identified to allow the Plaintiff to determine the relevance. The Plaintiff wishes to examine the affiant of the supplementary affidavit of documents.

[8] The Defendant states that the documents listed in the supplemental affidavit are the documents of the deceased Defendant, Haftvan. The documents are not the estate trustee’s documents. The estate trustee has filed an affidavit in which she states that she has no information about the documents. Counsel for the Defendant argues that a discovery of the estate trustee will not result in any relevant or valuable information. The Plaintiff argues that she should have an opportunity to examine her and test the assertion that she does not have any information about the documents. Questions may be asked as to why the Defendant says the documents are relevant. In addition, the estate trustee may be asked why the documents were not produced earlier.

[9] The new documents included two documents that the Plaintiff states are not authentic. There is a letter from Elena Klevstova to Canada Immigration dated July 7, 1999. The Plaintiff’s solicitor notes that the signature is off to the side. The Plaintiff wishes to examine the original document and conduct further enquiries including possibly engaging a handwriting expert. The second document is a mortgage amendment agreement dated July 19, 2002. The Plaintiff disputes the authenticity of that documents as well.

[10] The Defendant also provided a witness statement from a Mr. Sajadi. On discovery, counsel for the Plaintiff asked for the last known address for Mr. Sajadi. The question was refused on the basis that Mr. Sajadi did not have any relevant information. That answer on discovery was not corrected by the Defendant. The Defendant now seems to be taking the position that Mr. Sajadi may have some relevant information. Counsel for the Plaintiff argues that he did not have an opportunity to meet with this potential witness in advance of trial.

[11] The Defendant also recently produced willsay statements which the Plaintiff states are lacking in substance. The willsay statements set out the topics that counsel expect the witness to testify to, without providing the substance of the expected evidence. Counsel argues that the willsay statement does not comply with the general principle that there not be surprises at trial. Counsel for the Defendant points out that the Plaintiff’s willsay statements are also vague and lack substance.

Analysis

[12] Rule 52.02 of the Rules of Civil Procedure provides that a judge may postpone or adjourn a trial to such time and place and on such terms as are just. In exercising my discretion, I am required to consider the principles of proportionality and fairness to both parties. I am mindful of the comments of Myers J. in Letang v. Hertz, 2015 ONSC 72:

There does not need to be perfect disclosure and perfect discovery on every path and alleyway in order to achieve a fair and just outcome of the case on the merits. The Supreme Court of Canada has ruled that the goal of achieving a fair and just civil dispute resolution process becomes illusory unless it is proportionate, timely and affordable: at para. 18.

[13] In exercising my discretion, the paramount consideration is the interest of justice in ensuring that there will be a fair trial on the merits. As noted in Graham v. Vandersloot, 2012 ONCA 60, the natural frustration of having to deal with adjournment requests on the eve of trial must give way to the interests of justice which favours a claimant having a fair chance to make out his case: at para. 12. (see also: Padda v. Lalli, 2020 BCSC 1272).

[14] I am troubled by the fact that the Defendant produced 147 new documents approximately one month before trial. The documents were produced approximately one month after the pre-trial when the parties stated that documentary discovery was complete. It is the evidence of the estate trustee that she came into possession of the documents over 4 years ago. I am not persuaded by her explanation that the documents were not produced earlier because she did not know the issues in the action and therefore could not determine whether the documents were relevant. Although a further discovery of the estate trustee may result in very little relevant information, this not a reason to deny a party their right to examine the affiant on the affidavit and to test the assertion that she has no relevant information. I am also of the view that the Plaintiff should have the opportunity to interview Mr. Sajadi and to explore further whether the two disputed documents are authentic.

[15] I am satisfied that a brief adjournment is appropriate and just in the circumstances to allow the Plaintiff to carry out these additional steps. The adjournment cannot however be open ended. This case has been going on long enough. Considerable resources have been expended to get to this point. I agree with the submissions of the Defendant that justice delayed is justice denied. The case must not be delayed any more than is necessary.

[16] I adjourn the matter for three weeks. The trial is now scheduled to commence on January 30, 2023. I order that over the next three weeks, the estate trustee will make herself available for an examination under oath. I also order both parties to provide meaningful willsay statements of their expected witnesses that provide not just the topics to be addressed in the testimony but also the substance of their evidence. The parties are required to file written opening statements before the commencement of trial. The Defendant may submit a new opening statement and is not bound by the statement previously filed. All other orders of the pre-trial conference judge remain in effect.

[17] I am seized with respect to any issues that may arise with respect to the scheduling of the additional steps between now and the commencement of trial. I expect counsel to work together to ensure that the case is ready to proceed on January 30, 2023.

[18] Costs of the motion for the adjournment are reserved to the trial judge.

Date: January 6, 2023 Justice Chalmers