Mary Young v. Masonry Doctors et al.

COURT FILE NO.: CV-23-00695711-0000

DATE: 2023-04-21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARY YOUNG, Plaintiff

AND:

MASONRY DOCTORS, PATRICK HIGGINS, PATRICK MICHAEL HIGGINS also known as MICHAEL PATRICK HIGGINS, PATRICK ALAAADIN ALRADHI also known as ALAAALDIN ALRADHI, MOHANNED IRFAN WAJDI, KIYANA KAMALI, INFORM INTERIORS, MOHAMMAD JAVAD HOOSHMAND, JALEH MARANDI, MOHAMMADHOSSEIN ARABKARIMI, AMIR FAKROLDIN RAHIMI, SHIBAN CANADA INC., SEYEDEH SEPIDEH HOSSEINI DINANI, LAETH HISHAM AL-NAKDY, JOHN DOE ACCOUNTHOLDER(S) and JOHN DOE CONTRACTOR(S), Defendants

BEFORE: Madam Justice A.P. Ramsay

COUNSEL: Rahul Gandotra, for the Plaintiff Graeme Oddy, Jason Bogle and Y. Ismail, for the Defendants Nicholas Fitz, Shaneka Taylor and Dean Paspalofski, for the Non-Party

HEARD: April 21, 2023

ENDORSEMENT

I. Nature of the Motion

[1] This is a motion, by the plaintiff, to extend the Mareva order of Merritt J. dated March 10, 2023, and for other ancillary relief.

[2] There is a cross motion by the defendant Amir Fakroldin Rahimi to discharge the Mareva order against him.

[3] Relief is also sought by the non-party, Amir Kheiri, to be relieved from attending examination under oath.

II. Disposition

[4] Order to go as asked, and filed, extending the Mareva order of Merritt J. to May 12, 2023.

[5] The motion by Mr. Rahimi is dismissed, without prejudice to him renewing his motion at a future date.

[6] Any order with respect to the non-party, Amir Kheiri, is suspended.

[7] Directions with respect to Caselines, below, are to be complied with.

III. Brief reasons for decision

[8] The plaintiff seeks an extension of the Mareva order of Merritt J. dated March 10, 2023, and to amend Schedule A to the order to freeze accounts which received funds traced to certain TD accounts. The order has previously been extended on three other occasions. The Mareva order has been extended by my colleagues Papageorgiou J., Dow J. and Chalmers J. though I could not locate any of the endorsements in the extensive documents uploaded to Caselines, only the orders. Most of the relief sought by the plaintiff on this motion is on consent or unopposed except by the defendant Amir Fakroldin Rahimi and the non-party Amir Kheiri.

[9] The defendant Rahimi brings a cross motion to have the Mareva Order lifted against him.

[10] Mr. Amir Kheiri, a non-party, seeks relief from an order compelling him to attend an examination under oath.

[11] With respect to Mr. Kheiri, I would suspend the order against him for the following reasons. The plaintiff alleges that she was defrauded $1.4 million dollars for false or unnecessary renovation work. Ms. Young issued a bank draft of $22,800 to Mr. Rahimi. Mr. Rahimi claimed it was for payment of a luxury Rolex watch sold to Mr. Kheiri. However, Mr. Rahimi deposes in his affidavit that he has never met or engaged in any business with the plaintiff. This evidence is diametrically at odds with that of the plaintiff. Although in his affidavit, Mr. Ramini talks about a transaction involving a Rolex watch and discounting the amount for Amir, he never actually says that he received the draft from Aimr Kheiri. His evidence is that: “On October 7, 2022, I received a draft of $22,800 and I deposited the draft on October 11, 2022, to my personal TD Bank Account.” Paragraph 6 of the plaintiff’s own factum underlines the implausibility of the explanation based on the facts summarized in the plaintiff’s own factum.

[12] In my view, the inconsistency in the evidence before me would suggest that Mr. Kheiri should be afforded some relief. I am mindful of the fact that there is no sworn evidence before me from Mr. Kheiri, but I am also alive to the lack of procedural fairness at play before me. Despite the fact that Merritt J.’s order was granted well over a month ago, Mr. Kheiri has not been served. His counsel attended today and indicated that she too has not been served. I agree with Ms. Taylor that this is an abuse of process. While there is no formal motion before me, any relief sought with respect to Mr. Kheiri is stayed. There are other options available to the plaintiff in taking evidence of a non-party, but that evidence cannot be procured based on the implausible hearsay evidence of a defendant who the plaintiff suggests is a fraudster.

[13] I turn now to Mr. Rahimi and his accounts at the TD bank that were frozen. Mr. Rahimi argues that he is prepared to pay into court funds and submits that he has complied with the court orders and the undertakings and is not in default. The plaintiff argues that the discharge of Mr. Rahimi at this stage would be premature, and Papageorgiou J. previously declined to grant such an order on a prior occasion. She pointed out a number of concerns. Counsel for the plaintiff argues that there have been limited statements, including a lack of disclosure of bank statements. When I asked counsel for Mr. Rahimi whether the concerns of Justice Papageorgiou had been remedied, counsel pivoted to the fact that there are 18 defendants and Mr. Rahimi is liable for, at the most, $22,800.

[14] In that respect, there is a dispute between the parties. Counsel for the plaintiff say they can agree that $22,800 was deposited to Mr. Rahimi’s account. He argues that statements were only produced for October, January and February from the account and statements were missing for November and December, even at the attendance before Papageorgiou J. He submits that the amount may be more than $22,8000, and argues that there are missing statement from June, when the fraud commenced, and which were requested during Mr. Ramini’s cross examination.

[15] I therefore agree with the plaintiff that it is premature to discharge the Mareva at this stage (against Mr. Ramini).

[16] I therefore make the following orders:

i. Order to go as asked, and filed, extending the Mareva order of Merritt J. to May 12, 2023;

ii. Motion by Mr. Rahimi is dismissed, without prejudice to him renewing his motion at a future date;

iii. Any order with respect to the non-party Amir Kheiri is suspended.

[17] I must make some comments about CaseLines, which is impossible to navigate for this matter.

[18] I am sympathetic to the fact that there has been a proliferation of notices and directions since the pandemic. The updated Consolidated Practice Direction released in August 2022 should be reviewed as well as the Court's guidelines for Civil, Criminal, Family, Small Claims Court and virtual courtroom etiquette March 16, 2022. I would urge each counsel to be an ambassador in ensuring their colleagues or even lawyers on the other side are made aware of these documents, to the extent that it appears necessary.

[19] In this case, if the matter proceeds to a hearing, counsel must ensure that they adhere to the file directions below. A number of cases have made it clear that CaseLines is a presentation tool to be used at the hearings. As for the Motion Records and Supplementary Records in this case, the Indices are not hyperlinked to the Exhibits. There is now ample jurisprudence outlining the importance of hyperlinks and various resources available to assist counsel and litigants: Bowman v. Uwaifo, 2022 ONSC 678, at paras. 47-58; Ontario (Attorney General) v. Contents of TD Bank Account, 2021 ONSC 6386, at paras. 16-19; Basaraba v. Bridal Image Inc., 2021 ONSC 8038; Lepp v. The Regional Municipality of York, 2022 ONSC 6978, to name a few. It is up to the parties or their counsel to ensure that what has been uploaded is in accordance with the direction from the court. Dunphy J., in the recent decision of Basaraba, put it succinctly at para. 27:

My closing comment would be to exhort ALL counsel to check back on their case after they have uploaded their documents to Caselines and verify that a judge reviewing it will be able to navigate through the evidence, case law and written argument in the way they would like. Hyperlinks in facta and motion records are a MUST….

In Basaraba, Dunphy J. dismissed the motion.

[20] In the recent decision of Lepp, Regional Senior Justice Edwards adjourned a motion because counsel failed to comply with the requirements in the Notice to the Profession, Parties, Public, and Media regarding filing a factum with hyperlinked caselaw instead of filing a book of authorities and a hyperlinked compendium. At the conclusion of his reasons, he indicated:

In the result, I adjourned today’s motion to allow counsel to comply with the Notice. Very simply put, the Bar needs to reflect on why they are filing materials that are hundreds, if not thousands of pages long. This applies to Motion Records, Caselaw and Pre Trial memos. In the world we now live in, the Bar needs to appreciate that apart from the requirements imposed by the Notice and the Rules of Civil Procedure judges are human beings. We simply do not have the time to read the volume of material we are often confronted with. The Bar would be well advised to read the Notice and The Rules to ensure they have complied with the minimum filing requirements for the hearing of a motion or a pretrial.

[21] In the result, if the motion proceeds in the future, I make the following directions with respect to the electronic documents:

a) All materials shall be uploaded to CaseLines at least five days before the hearing date. The parties must take care to ensure that their materials are uploaded into the correct bundle, i.e. motion materials into the correct motion bundle.

b) All materials shall be hyperlinked, including references to the evidence and law in the factums, and references to exhibits in the affidavits. Links to the law in the factum should link to the portion of the decision on which counsel relies. Affidavits and/or exhibits to affidavits shall not be uploaded as separate documents in CaseLines but rather uploaded as part of a volume in a motion record.

c) All indices must hyperlink to the documents described in them, and all documents must link back to the index of the volume in which they are contained. The parties must confirm that the hyperlinks are working on CaseLines, and specifically that in uploading the documents to CaseLines, the hyperlinks have not been scrubbed.

d) If there is a book of authorities containing cases not found on a free online site, the document shall consist of a hyperlinked index, and copies of any cases that are not available online.

e) The parties shall include, on their Motion Confirmation Form, the “Materials Filed and to be Relied on at the Hearing”.

f) The parties are reminded that technical support for CaseLines is available by telephoning 1-800-290-9378.

g) Failure to comply with these requirements may result in the matter not proceeding at the designated time.

Justice A.P. Ramsay

Date: April 21, 2023