Court File and Parties

COURT FILE NO.: CV-23-91642-00ES DATE: 2024/03/22 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Maryam Jan Mohammadi, Applicant AND Farhat Farid, Estate Trustee

BEFORE: Justice Robert Smith

COUNSEL: Haiyan Zhang and Nabil Khoris, counsel for the Applicant Carol J. Craig, counsel for the Estate Trustee

HEARD: February 23, 2024

Reasons for Decision

[1] The applicant, Maryam Jan Mohammadi (“Maryam”), has brought an application for a declaration that the sum of $70,500 she advanced to the late Saduddin Farid (“Saduddin”) was a loan payable by his estate. In addition, she claims interest at the rate charged on her line of credit.

[2] Farhat Farid (“Farhat”) is Saduddin’s daughter and the estate trustee of his estate.

[3] Farhat does not dispute that Maryam advanced the sum of $70,500 to Saduddin but there was no written documentation of the loan and the estate submits that there is insufficient corroboration as required by s. 13 of Ontario’s Evidence Act, R.S.O. 1990, c. E.23, to prove that the sum advanced was a loan.

Facts

[4] On July 22, 2020, Saduddin signed an agreement of purchase and sale for a new house for $715,900. He made a deposit on the purchase of $70,000 and obtained a mortgage for $536,925. However, he did not have sufficient funds to complete the closing.

[5] Saduddin was Maryam’s colleague at work and a friend. He asked her if she would lend him $70,500 to allow him to complete the purchase of his house and to prevent him from losing his deposit of $70,000. He promised to repay the loan plus the interest she had incurred within days after the closing was completed.

[6] Maryam agreed to borrow the amount requested on her line of credit and to loan him the money to complete the closing provided Saduddin would repay the loan plus the interest she was charged on her line of credit within days after the closing was completed. Saduddin agreed with these terms.

[7] Maryam advanced $16,500 by way of two payments of $8,150 on August 14 and $8,350 on August 17, 2021. Maryam states that Saduddin told her that these amounts were required for closing. Maryam advanced a further sum of $54,000 to Saduddin from her line of credit on October 6, 2021.

[8] Unfortunately, Saduddin died on October 11, 2021, but the purchase of his house closed on October 12, 2021.

[9] The interest rate on Maryam’s line of credit was prime plus 0.5 percent, which was 2.95 percent per annum as of October 6, 2021.

Issue - Is there sufficient corroboration and evidence that the amount of $70,500 advanced to Saduddin was a loan?

[10] Section 13 of the Evidence Act requires corroboration by material evidence other than the claimant’s own evidence in an action against an estate and reads as follows:

In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

[11] Mirwais Farid is Saduddin’s brother who lives in the Netherlands. He swore an affidavit stating that Saduddin told him during a phone call shortly before his death that he had borrowed $70,500 from Maryam to close the purchase of his house. The deceased specified that Maryam transferred $16,500 in August 2021 and $54,000 on October 8, 2021.

[12] In addition, Naimatullah Tahiri, who is the deceased’s “remote cousin”, also swore an affidavit stating that Saduddin borrowed enough money from Maryam to complete the purchase of his house. This affidavit is more general but also corroborates that the funds advanced by Maryam were a loan to Saduddin.

[13] In addition, there is no dispute that Maryam advanced the amount of $70,500 to Saduddin from her line of credit.

[14] The estate doubts whether the funds advanced by Maryam to Saduddin were actually a loan because the two advances of $8,150 and $8,350 were made in August 2021 but the closing did not occur until October 12, 2021. Farhat does not dispute that the $54,000 advanced by Maryam on October 6, 2021 was loaned to Saduddin to complete the purchase because the funds can be traced directly to the lawyer’s statement of adjustments. The two advances totalling $16,500 in August 2021 have raised their suspicions about whether these funds were used to purchase the house or for some other purpose.

[15] In Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854, 113 O.R. (3d) 161, the Court of Appeal held that s. 13 of the Evidence Act should be given a broad interpretation when considering the scope of evidence capable of meeting the corroboration requirement.

[16] The corroborating evidence must be independent. In Stajduhar v. Wolfe, 2017 ONSC 4954, 99 R.F.L. (7th) 401, aff’d 2018 ONCA 258, 10 R.F.L. (8th) 32, leave to appeal refused, [2018] S.C.C.A. No. 431, this court held that the corroborating evidence can be direct or circumstantial. How little or how much corroboration is sufficient is a question of fact to be determined in the circumstances of each case.

[17] In the circumstances of this case, I am satisfied that the affidavit evidence of Mirwais Farid, who is the brother of the deceased, as well as the affidavit of his “remote cousin” Naimatullah Tahiri, combined, provide sufficient corroboration of Maryam’s affidavit evidence that she loaned Saduddin the amount of $70,500 which was to be repaid shortly after closing. In addition, Saduddin was to repay the interest that Maryam paid on her line of credit on the funds advanced from the date of the advance to the date of this decision.

[18] I find that there is sufficient corroboration. I also find the evidence convinces me on the balance of probabilities that the $70,500 Maryam advanced to Saduddin was a loan. This is based on the affidavit evidence from Maryam, Mirwais Farid and Naimatullah Tahiri, as well as the financial records.

[19] The interest rate has varied since the funds were advanced to Saduddin and if the parties cannot agree, further submissions with affidavit evidence of the interest rate applicable may be provided to me in writing.

Disposition

[20] Farhat Farid, as estate trustee of the estate of Saduddin Farid, is ordered to pay the applicant Maryam Mohammadi the sum of $70,500 plus interest charged on Maryam’s line of credit from the date of the advances until the date of this decision. Further evidence is to be provided if the parties do not agree on the amount of interest.

Costs

[21] Each party may make brief written submissions on the amount of costs within ten days.

Justice Robert Smith Date: March 22, 2024