Court File and Parties

COURT FILE NO.: CV-22-2469-0000 DATE: 2024 04 12 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

SAMIR IBRAHIM Plaintiff

• and - THE BANK OF NOVA SCOTIA Defendant

Counsel: Self Represented, for the Plaintiff C. Miller, for the Defendant

HEARD: March 28, 2024, in Milton

Reasons for Decision

Emery J.

[1] The defendant Bank of Nova Scotia (“BNS”) brings this motion under Rule 2.1.03(1) of the Rules of Civil Procedure for the court to stay or dismiss the action as the plaintiff Samir Ibrahim is subject to an Order as a vexatious litigant under s. 140(1) of the Courts of Justice Act. As a vexatious litigant, he was required to obtain leave to institute or continue a proceeding if that Order has not been rescinded. That Order remains in force, and Mr. Ibrahim has not obtained the necessary leave.

[2] The defendant BNS further submits that the action has no basis in fact or in law. BNS has also brought the motion under Rule 21.01(3) to stay or dismiss the action on the ground that the action is frivolous, vexatious or an abuse of the process of the court, or in the further alternative to dismiss the action on summary judgment. BNS submits that any of these alternative grounds will support the request that the action be dismissed as the appropriate relief. BNS seeks the dismissal of the action instead of a stay in the event Mr. Ibrahim intends to seek leave at a later time.

The Order under s. 140(1)

[3] On November 26, 2019, Justice I.S. Bloom granted an Order under s. 140(1) on an Application of the Guelph Police Services Board (the “Bloom Order”) that contained, among other things:

a. A declaration that Mr. Ibrahim persistently and without reasonable grounds instituted vexatious court proceedings and conducted proceedings in a vexatious manner within the meaning of s. 140;

b. An Order that no further proceeding shall be instituted by Mr. Ibrahim in any court except by leave of a judge of the Superior Court of Justice

[4] Mr. Ibrahim commenced this action against BNS by having the statement of claim issued at Milton on December 7, 2022. It not disputed by Mr. Ibrahim that he did not obtain leave from a judge of the Superior Court to bring this action.

[5] There is no doubt that Mr. Ibrahim was aware of the Order made by Bloom J. dated November 26, 2019. That knowledge is evident by virtue of an Application commenced by Mr. Ibrahim against the Attorney General of Ontario under Toronto Court File No. CV-21-673049 to obtain the required leave to continue three existing actions. Mr. Ibrahim brought the Application to obtain that leave under s. 140(4) and to rescind the Order declaring him a vexatious litigant. That Application was dismissed by Centa J. with a full set of reasons at 2022 ONSC 6339 on November 9, 2022 (the “2022 decision”).

[6] In the 2022 decision, Centa J. chronicled the history behind the vexatious litigant application resulting in the Bloom Order. That application had been brought on assertions by the Guelph Police Service that Mr. Ibrahim had instituted multiple proceedings against the Guelph Police and other parties.

[7] In reference to the matter before him, Centa J. recited the various proceedings commenced by Mr. Ibrahim giving rise to the request for leave. In 2015, Mr. Ibrahim had commenced an action against the Guelph Police Service Ministry of Community and Social Services, Office of the Prime Minister and the Attorney General for Ontario seeking damages and punitive damages in the amount of $20,000,000. That proceeding had been dealt with in various stages until the Bloom Order was made in 2019. Centa J. continued with a review of the proceedings Mr. Ibrahim had brought in 2017 against the Toronto Community Housing Corporation and Greenwin Inc. for the return of personal property and punitive damages. In 2019, Mr. Ibrahim had commenced an action against the Guelph Police Service, Guelph General Hospital, Penny Leach, Manager for Victim-Witness Assistant Program and other defendants in which he claimed $50,000,000 in damages.

[8] Before reviewing each proceeding, Centa J. set out a comprehensive guide to the requirements that a person who is subject to an Order under s. 140(1) must meet for the court to grant leave to continue an action. At para. 11 of the 2022 decision, Centa J. summarizes those requirements as follows:

The jurisprudence has established a number of principles that I should apply in considering this application:

a. This application is not an appeal. I am not to review the correctness or reasonableness of the decision of Bloom J. to declare Mr. Ibrahim a vexatious litigant or the fairness of the process that led to that decision: Falardeau v. Ontario (Attorney General), 2021 ONSC 6180, at para. 69;

b. The vexatious litigant must demonstrate that there is a prima facie ground for the proceedings to be permitted to be continued and that there is a genuine reason or need for the litigation to continue: Foy v. Foy (1979), 26 O.R. (2d) 220 (C.A.), at para. 22; Chavali v. Chavali, at para. 17; and

c. The vexatious litigant order is a prospective case management step, designed to limit the costs imposed on the system and the other litigants, not a punitive measure: R v. Coote, 2011 ONSC 858, at para. 63; Ironside v. Roskam, 2017 ONSC 7416, at para. 20; Hok v. Alberta, 2016 ABQB 651, at para. 37.

[9] There is no cross-motion or application by Mr. Ibrahim asking this court to grant leave to continue his action against BNS, or to rescind the Bloom Order in whole or in part. Mr. Ibrahim is clearly in breach of the Bloom Order. An Order must be complied with according to its terms and purpose. The action against BNS was therefore commenced without the necessary judicial authorization, and there is no legal basis to permit it to continue.

[10] I have no difficulty in finding on the facts that Mr. Ibrahim has brought this action without obtaining the necessary leave. The real issue is whether the action should be stayed or dismissed as a result.

The claims made in the action

[11] Mr. Ibrahim commenced this action by having the statement of claim issued in which he claims damages against BNS in the amount of $10 million and costs. Mr. Ibrahim pleads the following allegations of material facts, among other things:

a. His mother, Yvonne Stafanous, purchased the house at 165 Farley Drive in Guelph in October 2009 for $380,000.

b. Ms. Stafanous passed away on March 16, 2017.

c. Mr. Ibrahim was to receive the property under his mother’s will.

d. Ms. Stafanous had appointed Mr. Ibrahim to be her Attorney under a Power of Attorney and was authorized to “take possession of all property within.”

e. The house was “seized” by Bank of Nova Scotia the same year that Ms. Stafanous passed away.

f. The Bank of Nova Scotia informed Mr. Ibrahim that he had to continue paying the mortgage on the house. Since his only income is from ODSP, he could not afford to pay the mortgage.

g. Ms. Stafanous had mortgage protection insurance that was supposed to pay off the balance of the mortgage after she passed away, and the Bank of Nova Scotia never informed him about it.

h. After Ms. Stafanous passed away, the Bank of Nova Scotia was supposed to contact the insurance company to pay off the mortgage but did not do that.

i. The Bank of Nova Scotia foreclosed on the house.

j. There were valuable items and other assets in the house worth over $1,000,000 that Mr. Ibrahim could not recover because of his disability.

k. The house and property sold for $1,015,000 in September 2021.

l. He is suing Bank of Nova Scotia for the mental, physical, emotional and financial damage he has suffered as a result.

Affidavit of Michael Irwin, for BNS

[12] BNS has filed the affidavit of Michael Irwin, a Senior Manager of Mortgage Enforcement in support of the motion. Mr. Irwin sets out the following evidence on the transfer of title to the house based on a review of documents attached as exhibits:

a. On December 24, 2009, Ms. Stafanous became the owner of the house – see the Transfer at exhibit B.

b. On February 15, 2018, title to the house was transferred into Mr. Ibrahim’s name – see Transmission By Personal Representative-Land at exhibit C.

c. On February 15, 2018, title was transferred from Mr. Ibrahim to Arezou Rahbari – see the Transfer by Personal Representative at exhibit D.

[13] Ms. Stafanous granted a first mortgage to BNS (through its subsidiary Scotia Mortgage Corporation) on January 5, 2015. This mortgage was discharged on February 26, 2018 as evidenced by the Discharge document attached as exhibit M.

[14] According to Mr. Irwin’s affidavit, Mr. Ibrahim subsequently commenced an action in 2019 naming himself personally and as the estate trustee of his mother’s estate as plaintiffs against real estate agents, the buyer Arezou Rahbari and his own lawyer, David Cameletti. In that action, Mr. Ibrahim alleged that he was “swindled” out of the house and property by those defendants.

[15] Mr. Ibrahim commenced the 2019 action in the Commercial List Court where it was dealt with by several judges in turn. Mr. Rahbari ultimately obtained carriage of the sale of the house under an Order of the court on July 7, 2021. On August 24, 2021, the court approved the listing of the house for sale. Mr. Rahbari ultimately sold the house to a new buyer for $1,015,000 on November 11, 2021.

[16] The court also ordered Mr. Ibrahim to collect all his possessions from the property on August 24, 2021. The court would go on to make an order on October 21, 2022 that Mr. Ibrahim was to collect his personal property or arrange for an assignment of the storage contract to himself. I draw the inference from this Order and the other evidence in Mr. Irwin’s affidavit that Mr. Rahbari had placed Mr. Ibrahim’s personal property into a storage unit to clean out the house for the sale.

[17] In the last endorsement on May 23, 2023, the court ordered that if Mr. Ibrahim did not collect his personal items by November 30, 2023, Mr. Rahbari could arrange for their disposal.

[18] In para. 20 of Mr. Irwin’s affidavit, he concludes his evidence regarding the non-involvement of BNS in any sale of the house as follows:

20. Accordingly, the first and second sales of the Property, and the alleged disposal of Mr. Ibrahim’s assets did not involve Scotiabank, were done pursuant to Court orders, and Mr. Ibrahim were aware of same. I see no basis for the allegations that Scotiabank “seized”, foreclosed”, or “sold” the Property.

[19] Mr. Irwin states that he has conducted a diligent search of the records at BNS (also known as Scotiabank) and Scotia Mortgage Corporation. He states that he has found no evidence that Ms. Stafanous obtained a mortgage protection insurance policy from or through Scotiabank, or from a third party.

[20] Mr. Irwin also states in his affidavit that, in any event, Ms. Stafanous was ineligible for Scotialife Mortgage Protection as the borrower. The standard Mortgage Protection Application form attached to Mr. Irwin’s affidavit requires any applicant for mortgage insurance protection from that insurer to acknowledge and declare, among other things, that she or he is between 18 and 65 years old.

[21] From the information recorded on the Transfer registered on December 24, 2009 when Ms. Stafanous took title to the house, it is evident that Ms. Stafanous was born on February 26, 1932. She was therefore 82 years old when she granted the mortgage to BNS or its affiliate in January 2015. At that age, she would not have qualified for mortgage protection insurance from that insurer.

Affidavit of Samir Ibrahim

[22] Mr. Ibrahim filed an affidavit in response to the motion. In that affidavit, he does not address the fact that he commenced the action without obtaining leave of the Superior Court of Justice as required by the Bloom Order. He does not provide any reason in his affidavit why he has brought the action contrary to the Bloom Order, or that he intends to comply with its terms to continue the litigation.

[23] The affidavit of Samir Ibrahim instead sets out the following facts:

a. The important fact that he is a visually impaired person, and a member of the Canadian National Institute for the Blind (CNIB);

b. His mother passed away on March 16, 2017.

c. The Guelph Police came to the house where he lived with his mother approximately a year or more before her death and assaulted him, causing him to bleed profusely. Although he doesn’t say so expressly, I infer that he was arrested as Mr. Ibrahim states that the police alleged that he had assaulted his mother;

d. Mr. Ibrahim’s mother had dementia before she died. After Mr. Ibrahim was released from detention, he went home but could not find his mother as he was under a “restrictive order” to stay several kilometres away from her;

e. He subsequently received a call that his mother was in the Guelph General Hospital. He could not see his mother because of the restrictive order against him.

f. Mr. Ibrahim states that he went to trial for allegedly assaulting his mother, and that he “beat the criminal charges.”

g. Even though his mother would call him when she was in the hospital and later in an “old age home”, Mr. Ibrahim could not go and see her for approximately one year and a few months.

h. Ms. Stafanous passed away in a Nursing Home in Kitchener. Mr. Ibrahim states in his affidavit that after she died, Scotiabank started to harrass him as her son to take care of the house for her. He then makes the statement that “As a matter of fact she had insurance on her mortgage in case of death, the insurance policy should cover the mortgage expenses plus the funeral. However, in the same court in Milton, the Scotiabank lawyer he took me to court to cease [sic] the house.”

i. Mr. Ibrahim goes on to state that he cannot get the insurance policy number or the letter sent by the Insurance Company that was sent to his mother’s house by certified mail. He could not pick the letter up because he was incarcerated by the Guelph Police at the time. As a visually impaired person, he could not find out what insurance company had sent the letter to make contact.

j. As a result, Mr. Ibrahim states that he is a victim of Scotiabank (as well as the Guelph Police) because he has already lost the house that is now worth $1.5 million, not including his personal belongings, as well as his claim for punitive damages.

Analysis

[24] Mr. Ibrahim’s claim against BNS is based entirely on the allegation that his mother had a policy of mortgage protection insurance that would have paid out the mortgage held by the bank on her death. Under this theory, BNS would not have demanded that he continue paying on the mortgage, and would not have seized and sold the house upon default had the insurance policy paid out the mortgage.

[25] I find there is no evidence that BNS or its affiliates had any connection with the house except for the mortgage granted by Mr. Ibrahim’s mother in 2015. That mortgage was paid out when Mr. Ibrahim himself sold the house to Mr. Arezou Rahbari in February 2018. I find as a fact that neither the defendant BNS nor any related corporation seized or sold the house.

[26] I read nothing into the fact that Mr. Ibrahim sold the house to Mr. Rahbari for $265,000 as shown in the Transfer By Personal Representative dated February 15, 2018 as exhibit D to Mr. Irwin’s affidavit. Although this was an amount less than the purchase price paid by Ms. Stafanous in 2009, it was either a regrettable decision made by Mr. Ibrahim at the time, or part of the consideration may have had something to do with past obligations of Ms. Stafanous under mortgages granted to Mr. Rahbari in 2012 and 2014. BNS had nothing to do with this sale except for providing a discharge statement when the mortgage was paid out from the proceeds in the normal course.

[27] I further find as a fact that BNS had no role in the subsequent sale of the house in September 2021 to which Mr. Ibrahim refers in para. 15 of the statement of claim. That sale was made by Mr. Rahbari to a buyer under the authority of the court.

[28] Apart from the statement that his mother had mortgage protection insurance in para. 22 h. above, there is no evidence that Ms. Stafanous was ever insured by BNS or any affiliated insurer. Mr. Ibrahim does not explain the source for stating that fact or the basis of his belief, and he does not produce any document that supports this allegation. It is evidence that cannot be accepted to raise a genuine issue for trial as a self-serving affidavit is not sufficient to create a genuine issue for trial in the absence of detailed facts and supporting evidence. See Guarantee Co. of North America v. Gordon Capital Corp. at para. 31, and Grewal v. Khaira et al., 2021 ONSC 4908, at para 25.

[29] As the Court of Appeal held in Trotter Estate, 2014 ONCA 841 at para. 73, bald assertions do not give rise to a genuine issue requiring a trial.

[30] I find on the balance of probabilities that Ms. Stafanous did not obtain a policy of mortgage protection insurance from any insurer affiliated with BNS or any third party insurer known to BNS that would have paid out the BNS mortgage on her death.

[31] Mr. Ibrahim’s action does not raise a triable issue in the absence of foundational evidence that a mortgage protection insurance policy was ever issued to Mr. Ibrahim’s mother. It would be manifestly unfair to require BNS to defend the action through the discovery and trial process without this evidence. There is a serious risk that to stay this action so that Mr. Ibrahim might bring a motion for leave to continue the action would bring the administration of justice into disrepute as the court would likely contend with the same evidentiary deficiencies a year from now. See Ibrahim v. Ontario, 2022 ONSC 6339, at para. 8.

[32] I find that Mr. Ibrahim’s claim is almost certain to fail. The action is therefore found to be frivolous and vexatious under Rule 21.01(3)(d).

[33] In the event I am wrong in making that finding on the law, I also conclude on the evidence that there is no genuine issue requiring a trial to dispose of this action by summary judgment under Rule 20.04.

[34] The motion is granted. The action is dismissed.

Costs

[35] In the event that costs are demanded, BNS may file written submission consisting of no more than two pages, not including any offer to settle or bill of costs, by April 19, 2024. Mr. Ibrahim may then file responding submissions on costs by May 1, 2024, subject to the same page limits. No reply submissions shall be permitted. All submissions on costs may be filed by email to my judicial assistant at susan.pickles@ontario.ca.

Emery J. Released: April 12, 2024