COURT FILE NOS.: CV-19-623015 and CV-20-653030
DATE: 20240617
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HALIME KHATOUN AGHDASI
Plaintiff
– and –
VAHID MEHDIZADEH ASIYABAN and 2468692 ONTARIO LTD.
Defendants
Gord McGuire and Sean Pierce, for the Plaintiff
Paul Portman, for the Defendants
HEARD: April 22, 23, 24, 29, 20 and May 2, 2024
Papageorgiou
Overview
[1] The defendant Vahid Mehdizadeh (“Vahid”) works in the construction industry. He is currently engaged in the development of a 24-unit residential complex. The plaintiff Halime Khatoun Aghdasi (“Halime”) is currently a licensed real estate agent.
[2] Vahid and Halime were in a common-law relationship from 2002 until approximately April 2017. During their relationship they purchased a variety of pieces of real property, some jointly, some in Halime’s name, some in Vahid’s name, and some that they each shared with other individuals. They would rent these or renovate and flip them.[^1]
[3] This proceeding concerns claims in respect of only two of these properties.
[4] The first is a commercial two-story building located at 188 Deerfield Ave. (the “Deerfield Property”). Halime claims that this was a jointly held property even though it was registered in the name of the defendant corporation, 2468692 Ontario Ltd. (the “Corporation” or “246 Ontario”), which is solely owned by Vahid. Halime seeks a resulting trust or a constructive trust as a remedy for unjust enrichment.
[5] The second property is located at 123 Ellis Ave. (the “Ellis Property”) and was in Halime’s name. Halime claims damages she allegedly incurred when she sold the Ellis Property, which she says was at a distressed price because Vahid unreasonably registered a caution (the “Caution”) and Certificate of Pending Litigation (the “CPL”) against this property. Vahid seeks a resulting trust or constructive trust as a remedy for unjust enrichment.
[6] At the outset of trial, Vahid amended his pleading to seek a declaration that two documents he signed acknowledging that Halime is entitled to ownership of the Ellis Property were domestic contracts that must be set aside pursuant to ss. 56(4)(a) and 56(4)(b) of the Family Law Act, R.S.O. 1990, c. F.3, and/or by reason of undue influence, duress, and unconscionability. Vahid’s counsel argued that if these agreements are set aside, then there would have to be a reference on the issue of equalization with respect to the Ellis Property with financial statements, etc. Halime consented to this amendment, preserving her right to argue that this claim was statute barred.
[7] As well, in closing submissions, Vahid raised for the first time that the parties were engaged in a joint family enterprise whereby they agreed to share the Ellis Property (while still contesting any entitlement by Halime to the Deerfield Property). When I pressed his counsel about the illogic of this singular claim over the Ellis Property by way of joint family enterprise, his alternative argument was that the joint family enterprise could also include the Deerfield Property. When I pressed him still based upon the case law and the evidence before me that there were multiple properties held solely by Vahid not shared with Halime, as a third alternative argument, Vahid’s counsel argued that all properties that each party accumulated over the course of the relationship could be taken into account as part of a joint family enterprise. This would ultimately necessitate further productions, the exchange of financial statements, discovery and then a further proceeding to address the issue of the distribution of such assets.
[8] None of this was ever pleaded despite the amendments at the outset of trial. This was never mentioned in the Trial Management Report nor at the case management conference I held the Friday before the trial commenced.
[9] As I will explain, the late notice of this claim is unfair. Had this been pleaded from the outset, this action could have been pursued by Halime differently. She could have requested and been entitled to disclosure of documentation regarding all of the properties that each of the parties accumulated during their relationship and then ended up with at the end of the relationship. There could have been discovery on this issue to address whether Halime or Vahid unfairly ended up with a disproportionate share of any accumulated assets, a factor that is central in the case law concerning joint family enterprise relied upon by Vahid.
[10] There are many criticisms one could make about Vahid’s approach, including that it constitutes trial by ambush. After seven years of litigation and a trial, the idea that Vahid should get another kick at the can and another hearing to address a late-breaking joint family enterprise theory is also an abuse of process. The courts do not have the time nor the resources to provide these two parties with another hearing because Vahid has now finally recognized, as will be seen, that both his claim and defence herein are highly problematic and that he needs a new theory. And he sought to do this, again, without having provided any information about his own financial circumstances and the various properties that he held outright during the relationship that Halime has never shared in nor made any claims to.
[11] There are also ancillary claims made by Vahid related to: a) Halime’s alleged conversion of luxury goods; b) his alleged entitlement to be reimbursed by Halime for the costs he was ordered to pay in respect of the CPL proceedings; c) his alleged entitlement to damages for legal expenses to defend a criminal complaint made by Halime; and d) his alleged entitlement to commissions in respect of three property closings. Vahid abandoned the last two of these claims in his closing submissions.[^2]
[12] There was also a claim made by Halime requesting an order that Vahid provide his consent to deal with the mortgage of a property in Turkey they jointly held, which is in default and which Halime cannot deal with without his consent. For this entire proceeding, Vahid resisted providing any such assistance. Then, when cross-examined, he finally agreed, in my view, because he recognized how unreasonable he was being. And now, this issue is going on consent.
Decision
[13] For the reasons that follow I grant Halime judgment and dismiss all of Vahid’s claims, as more particularly set out in the conclusion below.
Issues
• Issue 1: The Deerfield Property
a) Is Halime entitled to a 50-percent interest in the Deerfield Property by way of purchase money resulting trust?
b) In the alternative, is Halime entitled to a 50-percent interest in the Deerfield Property by way of constructive trust as a remedy for unjust enrichment?
c) If so, should there be an accounting of rents and profits that also takes into account carrying costs incurred by Vahid?
• Issue 2: The Ellis Property
a) Does Vahid have a claim to one half of the proceeds of sale of the Ellis Property by virtue of resulting trust or by way of constructive trust as a remedy for unjust enrichment? As part of this analysis, can Halime and Vahid’s relationship in respect of the Ellis Property or otherwise be characterized as a joint family enterprise?
b) Are the July 20, 2017 notes signed by Vahid acknowledging Halime’s ownership of the Ellis Property a separation agreement and if so, should they be set aside pursuant to ss. 56(4)(a) and 56(4)(b) of the Family Law Act, or is the claim statute barred?
c) Are the July 20, 2017 notes a basis to deny Halime’s claims in respect of the Deerfield Property?
d) Did Vahid improperly register the Caution and the CPL over the Ellis Property? Did such registration cause damage to Halime and if so, what is the quantum of such damages?
e) Is Vahid entitled to repayment of the costs orders made against him in the amount of $32,639 when the court ordered that he must discharge the CPL?
f) Did Halime convert various jointly owned luxury items owned by Vahid, and if so, what are his damages?
g) Is there a basis for an award of punitive damages?
Analysis
[14] Before addressing the issues, I set out here a description of the process, trial evidence and credibility assessment.
[15] This action proceeded by way of summary trial. There were two separate proceedings, one where each of Halime and Vahid were the plaintiff. Both of these were heard together. I will refer to the proceeding where Vahid is plaintiff as Proceeding 1 and the proceeding where Halime is plaintiff as Proceeding 2.
[16] In the Trial Management Form, Centa J. indicated that the parties would provide affidavits which could be supplemented by oral evidence in chief. The parties exchanged affidavits and then agreed that there would be no viva voce chief evidence at all to supplement the affidavit evidence, and only cross-examinations in court.
[17] Then, because Vahid had not properly filed all of his evidence, Halime agreed that his loose documents could be admitted as well as portions of his discovery evidence referenced in his affidavit.
[18] There were two principal witnesses, Halime and Vahid.
[19] I found Halime’s evidence more reliable, credible, and believable. She has shown from the beginning, with admissible contemporaneous documents, the flow of funds in respect of some properties they purchased together as well as some that they also purchased and held separately. She has shown that the funds realized from jointly held properties were divided between them when sold, and she has provided uncontradicted evidence that although Vahid seeks an interest in the Ellis Property now on the basis of joint family enterprise, he had at least four other properties that he never shared with Halime in the past and that according to him, do not factor at all into this matter.
[20] This chain of documents amply supports Halime’s narrative and Vahid admitted all of the contents of her affidavit in respect of the flow of funds. I add that Halime was only cross-examined for approximately one hour, even though two days were set aside for this in the Trial Management Report and even though this matter involves significant credibility issues.
[21] During the closing submissions I asked Vahid’s counsel to point out areas of the evidence which should cause me concern about Halime’s credibility. He could not provide me with a single example.
[22] In contrast, Vahid submitted a bald ten-page affidavit wherein he essentially disputed Halime’s entitlement to an interest in either the Ellis or Deerfield Properties on the basis that she “did not contribute in any substantial financial manner to, or otherwise increased the value of, any of the properties in question in these proceedings.” As I will show, the contemporaneous documents prove the exact opposite.
[23] Additionally, it is an admitted fact that Vahid submitted fake invoices made out in his name for work done at the Ellis Property in the amount of $140,000, in support of his without-notice motion for a CPL over the Ellis Property. His testimony before me, where he stated that at the time he needed such invoices to prove he contributed to the Ellis Property he just happened to find these fake invoices in a folder and does not know who prepared them, stretches credulity.
[24] Once Vahid had been caught submitting these fake invoices, he had to keep changing his story. He has submitted affidavits and theories about the fake invoices that has changed and evolved over time.
[25] The trial affidavits that he submitted from a parade of contractors whom he allegedly hired to do work on the properties were dubious and unsupported by any contemporaneous documents including invoices, emails, text messages, agreements, or even a ballpark number as to what he allegedly paid these contractors. These witnesses had ongoing personal or business relationships with Vahid and said that they had done work on the Ellis Property for “an agreed upon” but unspecified price. These witnesses’ affidavits were approximately six paragraphs long each, almost identically worded, provided no detail regarding the work they allegedly did and, in some cases, even cited time periods that were improbable because of when the Ellis Property was purchased.
[26] Overall, Vahid’s evidence was unclear, not supported by contemporaneous documents, inconsistent, demonstrably untruthful in many ways, and included fabricated evidence.
[27] Halime’s counsel quoted the following from Sir Walter Scott: “Oh, what a tangled web we weave, when first we practice to deceive.” I must say, this quote is fitting in this case.
[28] As a result, I do not accept any of Vahid’s evidence that has not also been corroborated by contemporaneous documents or other witnesses whose evidence is also otherwise supported.
Issue 1: The Deerfield Property
a) Is Halime entitled to a 50-percent interest in respect of this property by way of purchase money resulting trust?
[29] As set out in Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 20, a resulting trust arises where one party makes a gratuitous transfer to another but intends to retain a beneficial interest. The focus on the inquiry is the “transferor’s actual intention”, specifically whether the intention of the transferor at the time of the transfer was to make a gift or retain the beneficial interest: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 14, 18 and 25.
[30] Contributions to the purchase of real estate, including paying off mortgages, can give rise to a resulting trust: Kavanagh v. Shiels, 2015 ONSC 5815, at paras. 126-27; Chechui v. Nieman, 2017 ONCA 669, 136 O.R. (3d) 705, at paras. 59-66.
[31] Further, there is a presumption of a resulting trust where a person advances money to the purchase price but does not take legal title, which is referred to as a “purchase money resulting trust”: Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at paras. 1, 21. The presumption is that the person who advanced the purchase money intended to assume the beneficial interest in the property in proportion to her contribution to the purchase price: Rascal Trucking, at para. 29.
[32] In this proceeding, Vahid’s position has been that all the money to purchase the Deerfield Property came from him and that in any event, even if Halime contributed funds, all funds used to purchase any properties historically and from which she benefitted, were traceable to him. His affidavit summarized this flow of funds in one paragraph which appears to be copied from his pleading and attached no exhibits. When cross-examined, he admitted he could not show how the funds were traceable to him.
[33] Halime’s affidavit addressed both Vahid’s argument that he was the sole contributor to the Deerfield Property, as well as his overall position that all of the funds used to purchase any properties while the parties were together originated with him. She did this with a consistent narrative that incorporated 70 contemporaneous documents in support, and which showed that she contributed 50 percent of the funds, took risk in respect of the Deerfield Property, and had no intention to transfer the beneficial interest in this property to Vahid. Vahid did not even cross-examine her on her intention and so this evidence is unshaken.
[34] Halime’s narrative is more credible, believable and reliable, and I conclude that she is entitled to a declaration that she is the beneficial owner of 50 percent of the Deerfield Property as well as an order directing the Land Registry Office of York Region to amend the Register for the Deerfield Property by registering her as an owner as to 50 percent: Land Titles Act, R.S.O. 1990, c. L.5, s. 25; Courts of Justice Act, R.S.O. 1990, c. C.43, s. 100; Third Eye Capital Corporation v. Ressources Dianor Inc./Dianor Resources Inc., 2019 ONCA 508, 435 D.L.R. (4th) 416, at paras. 33-41; and Hardy v. Estate of Louise Winters Hardy, 2022 ONSC 1966, 78 E.T.R. (4th) 320, at paras. 10-14.
[35] Notably, the parties arranged for Halime’s affidavit to be submitted first. Vahid had an opportunity to respond to all the detailed evidence in her affidavit and contradict it if he could. However, he failed to provide evidence that would contradict most of Halime’s evidence re the flow of funds. In fact, he ended up corroborating most of her affidavit during his cross-examination.
[36] To understand why Halime has proven her claim (and also to address Vahid’s joint family enterprise argument in respect of the Ellis Property), it is important to understand the various transactions over the years and how the funds flowed from the beginning.
69 Highland Park
[37] 69 Highland Park was the first property purchased in 2005 for $418,500. The Agreement of Purchase and Sale shows Vahid and Halime as the purchasers. Halime says she contributed $17,750 to the purchase price by giving it to Vahid. Vahid’s CIBC account shows two deposits into that account totalling $17,750 on August 11, 2005, which amount he contributed to the purchase which closed on August 12, 2005. Vahid did not contest this in his affidavit.
[38] I accept Halime’s evidence that she had this money because she had been working for more than three years as a waitress, earning $2,000 in cash monthly, and had been saving these funds. I accept her evidence.
[39] Title to 69 Highland Park was initially taken in Vahid’s name with a third party, Ms. Ghaffari, to assist in qualifying for a mortgage and there is a trust agreement.
[40] Later in 2010, Halime went on title as joint tenants with Vahid. Further, the parties obtained a new loan at that time with both Vahid and Halime as borrowers and with the mortgage noting them both as “Chargors”. Notably, there is no bare trustee agreement between Vahid and Halime as there was with Ms. Ghaffari when she was on title.
[41] Vahid and Halime sold this property in 2010. The Agreement of Purchase and Sale shows both Vahid and Halime as the seller. There is uncontradicted evidence that they split the proceeds of sale with Vahid receiving $234,061 and Halime receiving $171,489 as set out in a Trust Ledger.
[42] When cross-examined, Vahid agreed with all of the above except for Halime’s assertion that it was her money used for the downpayment. He said he always gave her cash but did not have anything to prove this.
[43] And so moving forwards, each of Vahid and Halime had proceeds of sale of $234,061 and $171,489, respectively, that they could use. There is absolutely no evidence contradicting this.
[44] Thus, I conclude that this was a joint property, that Halime contributed to its purchase, and that the parties agreed that she would share in the proceeds of sale.
339 Morningside Ave
[45] In 2006, Halime and Ms. Ghaffari’s brother purchased 339 Morningside Ave.
[46] They rented this property out and sold it in 2008. Halime netted sale proceeds of $109,107. There is no evidence that Vahid was involved at all in this property, or that he received any proceeds of sale.
[47] I conclude this was Halime’s property.
2875 St. Claire Ave East
[48] In 2007, Vahid and another individual purchased 2875 St. Claire Ave East. Halime was not involved and did not receive any proceeds when it was sold in 2010. Vahid has provided no evidence as to what happened to this property.
[49] I conclude this was Vahid’s property.
58 Highland Park
[50] In 2010, Halime used part of her share of the 69 Highland Park proceeds to purchase 58 Highland Park for $510,000 without Vahid. All documents, including the Agreement of Purchase and Sale, transfer deed and Trust Ledger, show only her as the purchaser.
[51] Vahid’s counsel argued that Vahid put his money from 69 Highland Park into this property but there was no documentary evidence that any of his funds from any source, either his proceeds from 69 Highland Park or 2875 St. Claire Ave East, went into this purchase.
[52] Indeed, at the tail end of Vahid’s cross-examination on this issue, Vahid ultimately admitted that the reason why Halime’s name was on the Agreement of Purchase and Sale and hers alone was because it was owned solely by her and that he did not own it in any way.
[53] He also agreed that the sale proceeds belonged to her alone.
[54] It is uncontradicted that Halime renovated this property using second, third and fourth mortgages. It is uncontradicted that she sold this property for $1,698,000 and that after paying off the mortgages she had net sale proceeds of $520,000, as confirmed by a Trust Ledger and certified check made out to her.
[55] Thus, Halime provided the funds for this purchase and took all the risks. I conclude that this was Halime’s property, and any proceeds of sale were also hers.
Henderson Ave
[56] In 2011, Halime then used the other part of her proceeds from the sale of 69 Highland Park to purchase 149 Henderson Ave East with a partner named Ms. Noushin Pirahesh for $675,000. There is a Trust Ledger that corroborates this. Counsel made much of the fact that she could not find the joint venture agreement. I do not find this concerning. It was 13 years ago and if Vahid wanted to challenge the underlying documents and Ms. Pirahesh’s role, he could have called her as a witness.
[57] Halime then renovated this property and funded this renovation by placing mortgages on the property. Then, after 58 Highland Park was sold, she used her net proceeds to buy out Ms. Pirahesh’s interest which left her as sole owner. Again, this is all corroborated by documentation, including a Transfer. Halime also paid the mortgage and bills for this property.
[58] Halime sold 149 Henderson Ave for $1,275,000 and netted $520,000 from this sale.
[59] Remarkably, even though Vahid was not on title and has no evidence of having contributed to 149 Henderson Ave, he pleaded in his Statement of Claim that this property was solely his and then offered no proof that it was.
[60] Then, when cross-examined, he admitted that he did not have any documentation that showed that he had any interest in 149 Henderson Ave because no such documents exist.
173 Ruggles Ave
[61] Halime’s uncontradicted evidence is that in 2012, Vahid purchased 173 Ruggles Ave, Richmond Hill using his proceeds from 69 Highland Park, in partnership with Halime’s sister and Yousef Haditalab. They renovated this property and sold it in 2013.
[62] Vahid provided. no evidence in respect of this property.
[63] I accept Halime’s uncontradicted evidence that she did not share in this property and conclude that this property was Vahid’s.
29A Elm Grove Ave
[64] Halime’s uncontradicted evidence is that in 2012, Vahid purchased 29A Elm Grove Ave, Richmond Hill on his own, also using his proceeds from 69 Highland Park. After renovating it, he sold it for a profit.
[65] Vahid provided no evidence in respect of 29A Elm Grove Ave at all.
[66] I accept Halime’s uncontradicted evidence that she did not share in this property and conclude that this property was Vahid’s.
13 Aubrey Ave
[67] In 2013, Vahid purchased 13 Aubrey Ave, Richmond Hill, in his name alone for $515,000.
[68] Halime has no records to support this but says that she recalls that she transferred $95,000 from her proceeds of 58 Highland Park to Vahid on September 11, 2013. She says that this was a loan and did not claim any interest in 13 Aubrey Ave.
[69] She has produced a bank draft made out to Moaveni Law Office from Vahid in the amount of $94,717 on November 11, 2013, for the closing of this purchase.
[70] Then, when Vahid was cross-examined, he confirmed that Halime had contributed $95,000 to the purchase of 13 Aubrey Ave. Thus, while Halime concedes that 13 Aubrey Ave was solely owned by Vahid, he owed Halime $95,000 in respect of her contribution.
[71] Vahid sold 13 Aubrey Ave in 2015 for $747,500. Halime did not receive any proceeds of sale and there is no documentary or other evidence (not even a statement from Vahid in his affidavit) that the money she had given him to close this purchase was ever returned to her.
[72] Thus, I accept Halime’s evidence that she contributed $95,000 to this purchase, that it was never repaid and that Vahid owed her this amount.
99 Cooks Bay
[73] In 2017, Vahid purchased 99 Cooks Bay and subsequently sold it. Halime’s uncontradicted evidence is that Halime did not share in this property. There is no information from Vahid as to what he did with the proceeds.
[74] I conclude that this was Vahid’s property.
Conclusion regarding the way the parties dealt with their properties
[75] All of the above corroborate Halime’s affidavit evidence that the parties sometimes purchased properties together and shared proceeds, and sometimes purchased properties alone or with others and did not share proceeds.
[76] All of this takes us to the issues in respect of the Deerfield Property.
The Deerfield Property
[77] It is uncontradicted that in 2014, Halime and Vahid began looking for an investment property together. At this time, Halime had had her real estate license for one year.
[78] It is uncontradicted that Halime found a listing for the Deerfield Property and thought it would be a good investment.
[79] Halime says that they decided to buy it together, and again when cross-examined, Vahid agreed.
[80] It is also uncontradicted that the seller was frustrated, that he was about to take the property off the market, and that their real estate agent advised them that for tax reasons it would be better to purchase it through a numbered company.
[81] The offer to purchase, dated October 30, 2014, was made in Vahid’s name.
[82] Subsequently on May 29, 2015, they incorporated the defendant numbered company, 246 Ontario, with Halime and Vahid as directors. No shares were initially issued.
[83] In June 2015, 246 Ontario entered into an Agreement of Purchase and Sale in respect of the Deerfield Property for $880,000. Halime’s evidence, which I accept, is that this was simply for the purpose of taking title, and that at all times it was her understanding and agreement with Vahid that she would have a 50-percent share interest in the Deerfield Property as a co-owner.
[84] This purchase closed on June 23, 2015.
[85] Although Vahid baldly states that the purchase funds came from him, he provided no evidence for this in his affidavit and then, when cross-examined, he ultimately agreed that the Deerfield Property was a joint property.
[86] In contrast, Halime provided compelling and corroborated evidence that the purchase price came from four places, and that she not only provided purchase funds but undertook significant risk:
a) Halime paid the $40,000 deposit. This is corroborated by documentation and when cross-examined, Vahid admitted that the money for the deposit came from Halime.
b) There was an amendment to the Agreement of Purchase and Sale on May 7, 2015, that required two additional payments of $7,500. Halime paid both of these amounts as evidenced by contemporaneous documents. Vahid offered no contradictory evidence that this money did not come from Halime, or evidence that it came from him.
c) Because of environmental issues, they could not obtain a mortgage from a first-rate lender. As such, there was initially a $250,000 private mortgage loan from Olympia Trust Company (the “Olympia Trust mortgage”). At the time, Halime agreed that this mortgage would not only be registered on the Deerfield Property but also on 149 Henderson, which she owned without Vahid. She also agreed to be a borrower on this mortgage, which had a very high interest rate.
d) There was also a $350,000 private mortgage from 2051300 Ontario Inc. (the “205 mortgage”). Halime understood that this mortgage was to be registered on both the Deerfield Property and 149 Henderson.
The mortgage commitment shows that there were indeed two borrowers, the defendant 246 Ontario, secured to the Deerfield Property, and Halime, secured to 149 Henderson. Vahid acted as a guarantor. Halime believed that this mortgage was registered on 149 Henderson because she signed the documents, but in preparing for this trial her searches show that it was never registered.
e) Finally, $262,561 came from the sale proceeds of 13 Aubrey. Halime references the fact that she had contributed approximately $95,000 to facilitate Vahid’s purchase of 13 Aubrey (which he admitted) and says she did not ask for this back when it was sold because she understood the funds would be carried over to the purchase of the Deerfield Property. I accept her evidence.
[87] The parties then worked on obtaining the necessary environmental reports so that they could refinance using a traditional lender.
[88] I repeat that when cross-examined, Vahid agreed with all of the above. In fact, he even admitted that the Deerfield Property was one that he and Halime shared.
[89] Vahid tried to suggest that from the beginning, they lived and worked together and did not have a concept of different ownership of things. However, this does not explain the uncontradicted evidence of the four other properties that he owned separately or with others and that he did not share with Halime.
[90] He also tried to suggest that Halime had somehow manipulated him by controlling all of the documentation and that he did not know much of what she was doing because of his facility with English and trust in her.
[91] As I have said, I have significant credibility concerns about him and do not accept this evidence for that reason. I add that this position does not explain how he was able to purchase at least four properties without Halime, nor why she would not have also tried to place these properties in her name if he needed her for everything and she were trying to manipulate or take advantage of him by placing everything in her name.
[92] I will say more about his ability to read English when I address the fake invoices that he submitted.
[93] Therefore, based upon the corroborated evidence showing Halime’s contributions to the Deerfield Property, a presumption of resulting trust arises which must be rebutted by Vahid: Rascal Trucking, at para. 21; Andrade, at para. 59; and Studzinski, at para. 153.
[94] Vahid sought to rebut this presumption based upon refinancing transactions whereby the shares in 246 Ontario, which owned the Deerfield Property, were ultimately issued solely in Vahid’s name. But this argument fails for reasons I set out below.
149 Henderson is sold
[95] In August 2015, Halime entered into an Agreement of Purchase and Sale to sell 149 Henderson, which closed on October 8, 2015, leaving proceeds of approximately $478,000. She had intended to use these funds to purchase the Ellis Property, but at the time of this sale the parties had more pressing concerns. The interest rate for the Deerfield Property mortgages was high and they wanted to refinance.
[96] Part of the 149 Henderson proceeds, which were wholly Halime’s, were used to pay off the Olympia Trust mortgage, which was $259,597 at that time.
[97] The remaining proceeds from the sale of 149 Henderson, in the amount of approximately $218,000, were used to pay off the 205 mortgage of $350,000. The remaining $130,000 was paid by Vahid.
[98] All of these amounts are corroborated by a Trust Ledger Statement dated October 23, 2015, and Vahid agreed when cross-examined that the private mortgages were paid off using Halime’s funds from the sale of 149 Henderson.
[99] Halime’s uncontradicted evidence is that of the amount paid by Vahid, $20,000 came from her bank and she has also provided corroboration for that.
[100] After the Olympia Trust and 205 mortgages were paid out, in December 2015, the parties were preparing to obtain a mortgage from TD Bank for the Deerfield Property. They also needed to get the corporate records for 246 Ontario in order and worked with Minden Gross LLP to do so.
[101] Vahid told Halime that TD Bank would not give them a mortgage if she was a director of 246 Ontario; she had to resign from the Corporation to secure funding from a traditional lender like TD Bank, but she would be reinstated afterwards. She says that she signed a number of documents in connection with this, including documentation that she now understands resulted in share issuances in 246 Ontario to Vahid alone.
[102] When cross-examined, Vahid agreed that TD Bank told them at a meeting that Halime had to be removed as a director for them to obtain the TD mortgage.
[103] Even after Halime resigned as a director, Halime still agreed to personally guarantee the TD mortgage and understood that she would be personally responsible if there were ever insufficient funds to pay back the TD loan. This is not the action of someone who has voluntarily relinquished any claim to the Deerfield Property.
[104] The TD mortgage proceeds were initially transferred to 246 Ontario but then $550,000 was transferred to Vahid, who then transferred that to Halime. In effect, the TD mortgage proceeds permitted Halime to get back the proceeds from the sale of 149 Henderson that had been used to discharge the Olympia Trust and 205 mortgages on the Deerfield Property.
[105] The net result was that the Deerfield Property still had mortgages in the amount of $600,000 on it but at a lower rate, and Halime was paid back what she had loaned while the Deerfield Property was refinanced.
[106] (I will return to this, but this is why Vahid says that he contributed the funds for the purchase of the Ellis Property. What he has done is mischaracterize what in fact occurred, which was Halime contributing her own funds to discharge the private mortgages, then being paid back once the TD mortgage funds flowed and using these funds to purchase the Ellis Property.)
[107] Halime says that Vahid had told her following the TD mortgage that he had instructed 246 Ontario’s lawyer to put her name back on as a director and she took him at his word. In fact, the letter from Minden Gross dated December 14, 2015 supports this because it enclosed a consent for her to be made a director again, which she had signed.
[108] Despite his pleading and allegation in this proceeding that Halime did not contribute any funds to the purchase of the Deerfield Property, Vahid’s main argument at trial was that she participated in the issuance of shares in 246 Ontario to Vahid alone and thus gave up any interest in it.
[109] Notably, the December 14, 2015 letter from Minden Gross, set out Vahid’s instructions that the Corporation be organized such that he be issued 100 common shares. The letter was not copied to Halime but the resolution issuing the 100 shares to Vahid and backdated to May 29, 2015 was signed by Halime. Halime’s uncontradicted evidence is that she did not understand the difference between a shareholder and a director, and she was not cross-examined on this. Halime’s uncontradicted evidence is that she never intended to give up any interest in the Deerfield Property and she was not cross-examined on this intention either.
[110] In fact, Halime was not asked a single question about the resolution issuing shares in 246 Ontario to Vahid alone, or what she understood from this issuance. For that matter, Vahid also gave no evidence in his affidavit as to what he understood from these documents and the only evidence he gave on this issue came from his cross examination.
[111] When shown the resolution issuing shares to him alone, Vahid said he did not know about this at the time. Thus, at trial, even though his counsel argued that Vahid is the sole owner of 246 Ontario, which owns the Deerfield Property, and thus the sole owner of the underlying property, because of this share issuance, Vahid said he was not even aware that 100 shares were issued to him at the time.
[112] It is simply not persuasive to ask me to make a sweeping conclusion that Halime lost her beneficial interest in the Deerfield Property based upon the share issuance when neither Vahid nor Halime gave any evidence that they understood that it meant what counsel now argues — that Halime was intentionally giving up her interest in the Deerfield Property altogether, particularly when there is no evidence before me that any of Halime’s contribution to the Deerfield Property were ever repaid.
[113] Additionally, when cross-examined, Vahid agreed that after all of the transactions relating to the Deerfield Property set out above, Halime still had equity in that property between $119,814 and $144,814, which was approximately one half.
[114] I am satisfied, based upon the comprehensive and contemporaneous documents, that Halime made contributions to the purchase of the Deerfield Property that an individual with no interest would not make.
[115] I am also satisfied that her contributions were ultimately approximately 50 percent of the equity in the Deerfield Property which entitle her to a purchase money resulting trust.
b) In the alternative, is Halime entitled to a 50-percent interest in the Deerfield Property by way of constructive trust as a remedy for unjust enrichment?
Unjust enrichment
[116] In the alternative, I would award a constructive trust of 50 percent of the Deerfield Property as a remedy for unjust enrichment.
[117] The elements of unjust enrichment are a) the defendant was enriched; b) the plaintiff suffered a corresponding deprivation; and c) the defendant’s enrichment and the plaintiff’s corresponding deprivation occurred in the absence of a juristic reason: Moore v. Sweet, 2018 SCC 52, [2018] 3 S.C.R. 303, at para. 37. There must be a tangible benefit as well as a causal connection between the benefit and deprivation: Moore, at paras. 41-42.
[118] In this case, Halime has demonstrated a prima facie case of unjust enrichment. She has amply shown that she made actual expenditures towards the Deerfield Property and has lost wealth but for the transactions in issue: Moore, at para. 44.
[119] Halime has also shown that there is no reason in law or justice as to why Vahid should be able to retain the benefit conferred on him. She has demonstrated that she did not have any donative intent: Moore, at para. 57; Kerr, at para. 41.
[120] Vahid has failed to show there is a residual reason to deny Halime recovery based upon the parties’ reasonable expectations or public policy: Moore, at para. 58; Kerr, at para. 43; and Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, at paras. 45-46.
The remedial constructive trust
[121] A remedial constructive trust is appropriate where: a) a monetary award would be insufficient for reasons which may include the probability of recovery or where there is a reason to grant a party additional rights that flow from a proprietary remedy; and b) where there is a “sufficiently substantial and direct link”, causal connection or nexus between the contributions and the acquisition, preservation, maintenance or improvement of the property in question: Kerr, at paras. 50, 52; Moore, at para. 91; and Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980, at pp. 988-89. Where such a link is shown, the court may impose a constructive trust over the plaintiff’s proportionate contribution: Moore, at para. 91; Kerr, at para. 53.
[122] I need not repeat all the evidence that shows that Halime made a sufficiently substantial and direct link to the purchase of the Deerfield Property.
[123] With respect to the insufficiency of a monetary award, I agree that Vahid’s litigation history (which has been partly outlined in the introduction of this decision, and which will be further elaborated on below with respect to the Ellis Property) raises grave concerns about Halime’s ability to recover a monetary judgment. I agree that he has shown contempt for the judicial process and that there is strong reason to conclude that he will behave in a similar manner to prevent recovery of a monetary judgment. I also find her contributions were sufficiently substantial and direct.
[124] As such I award a constructive trust.
Monetary award
[125] In the alternative, I would grant Halime a monetary judgment in the amount of $1,040,000: Kerr, at para. 46; Moore, at para. 89.
[126] Where a restitutionary monetary award is made, it is based upon quantum meruit: Kerr, at para. 55.
[127] In this case, Halime has shown that she contributed 50 percent of the purchase price and took at least 50 percent of the risk in acquiring and financing this purchase.
[128] The parties have provided a joint valuation as to the value of the Deerfield Property, which was valued at $2,680,000 as of November 2, 2023. Deducting the $600,000 mortgage that they were both responsible for leaves equity of $2,080,000, half to which Halime is entitled, or damages in the amount of $1,040,000.
c) Should there be an accounting of rents and profits that also takes into account carrying costs incurred by Vahid?
[129] Halime argues that there should not be an accounting because the Deerfield Property has been rented and as per previous properties, it is likely that the carrying costs would have been paid by the rent. In fact, Vahid did give evidence that at least previously when they were together, the property was rented, and the rent covered carrying costs. But there is no evidence before me as to what actually occurred from 2017 until the present regarding rents and carrying costs.
[130] If Halime is a joint owner of the land, then she should not be able to benefit from its value without an accounting of expenses and rents.
[131] Halime has raised concerns about further litigation with Vahid given his conduct in this proceeding, but this issue is discrete and uncomplicated. It is essentially a matter of itemizing all the expenses and income from the Deerfield Property since 2017.
[132] I will conduct this assessment myself to ensure that it proceeds expeditiously. I am directing that the parties attend for a case conference to establish a timetable for the exchange of materials and evidence on this issue and to schedule a hearing in respect of it.
Issue 2: The Ellis Property
a) Does Vahid have a claim to one half of the proceeds of sale of the Ellis Property by virtue of resulting trust, or by way of constructive trust as a remedy for unjust enrichment? As part of this analysis, can Halime and Vahid’s relationship in respect of the Ellis Property or otherwise be characterized as a joint family enterprise?
[133] In Vahid’s Statement of Claim issued on July 3, 2019, in Proceeding 1, he claimed that he had contributed all the funds for the purchase, renovation or construction of any properties that were in Halime’s name in the past, including the Ellis Property, on the understanding that Vahid was the beneficial owner, and that Halime was holding these properties as trustee for him. He claimed that the title for some of these properties was only in her name for mortgage qualification, to protect against liability, or for convenience. He claimed that he had “contributed significant time and expense purchasing, carrying, constructing and renovating the properties”.
[134] Vahid could not establish the above at trial.
[135] Then, as stated, Vahid changed his theory of the case and alleged for the first time in closing argument that his and Halime’s relationship should be considered a joint family enterprise which should also entitle him to a remedial constructive trust over the Ellis Property.
[136] In Kerr, at para. 60, the Supreme Court discussed the fact that there are cases where unjust enrichment has been established, not based upon specific itemization of the contributions by one spouse, but based upon the recognition that:
the contributions of both parties over time have resulted in the accumulation of wealth. The unjust enrichment occurs following the breakdown of their relationship when one party retains a disproportionate share of the assets which are the product of their joint efforts. The required link between the contributions and a specific property may not exist, making it inappropriate to confer a proprietary remedy. However, there may clearly be a link between the joint efforts of the parties and the accumulation of wealth; in other words, a link between the “value received” and the “value surviving”, as McLachlin J. put it in Peter, at pp. 1000-1001. Thus, where there is a relationship that can be described as a “joint family venture”, and the joint efforts of the parties are linked to the accumulation of wealth, the unjust enrichment should be thought of as leaving one party with a disproportionate share of the jointly earned assets.
[137] In these kinds of cases, it may be artificial and difficult “in practice to do a detailed accounting of the contributions made and benefits received on a fee-for-service basis.” In such cases, a “balance sheet” approach may be “artificial” and may not “reflect the true nature of [the] relationship”: at para. 69. The application of this principle is related to the specific evidence in the case, and there is no presumption that common-law spouses are involved in a joint family venture.
[138] First, I will deal with Vahid’s claim to a resulting trust by virtue of financial contributions to the purchase price for the Ellis Property. Then I will address Vahid’s weak, flawed, unsupported, and not credible evidence as to how Halime was unjustly enriched by virtue of specific links between his contributions and the Ellis Property. Finally, I will address the evidence in support of the alleged joint family enterprise, or any evidence that shows that the joint efforts of the parties resulted in an accumulation of wealth that must be shared, and which could also support a finding of unjust enrichment.
i. Resulting Trust: Vahid made no contribution to the acquisition of the Ellis Property.
[139] On July 18, 2015, Halime entered into an Agreement of Purchase and Sale to buy the Ellis Property for $1,140,000 solely in her name. Vahid insisted when cross-examined that this was a joint purchase to which he contributed. There is no documentary evidence to support this other than the documentation that shows that Halime temporarily advanced money to discharge the private mortgages from her proceeds of the sale of 149 Henderson (which was hers), and that when these proceeds were repaid to her, she used them to buy the Ellis Property. There is a clear paper trail that shows that on December 22, 2015, Halime used $448,580 of the proceeds from the TD Bank mortgage, which were used to repay Halime for her temporary financing of the Deerfield Property, to purchase the Ellis Property.
[140] The following chart illustrates the flow of funds:
[141] Thus, all funds for the purchase came from Halime. When cross-examined, Vahid agreed that once they used the 149 Henderson funds to pay out the original mortgages, there was a great deal of equity in the Deerfield Property and that it came out, was repaid to Halime, and then she used those funds to buy the Ellis Property.
[142] Thus, Vahid has failed to establish any of the bases for a resulting trust including a) a gratuitous transfer to Halime: Pecore, at para. 20; or b) contributions to the purchase price: Kavanaugh, at paras. 126-127; Chechui, at paras. 59-66; and Rascal Trucking, at para. 21.
ii. Unjust Enrichment: Vahid has not proven alleged contributions to the preservation, maintenance or improvement of the Ellis Property.
The mortgage on the Ellis Property
[143] The mortgage on the Ellis Property from Street Capital in the amount of $640,000 (the “Street Capital mortgage”) is solely in Halime’s name and she paid the mortgage. Vahid was never a borrower, guarantor, or mortgagor in any way.
Payment of bills
[144] The Enbridge, Hydro, Rogers, utilities, insurance, and property tax account were all in Halime’s name. Halime says that she paid all of these and there is no evidence to contradict her or to show that Vahid did.
Halime’s renovations
[145] Halime says that she did some modest renovations as follows.
[146] She hired her aunt’s husband to install hardwood floors and drywall and paint the walls. He was family and did not want to be paid but she paid him $5,000. She has no receipt. She hired a contractor to install a new door and the written communications with this installer do not involve Vahid.
[147] She also hired KELuxe Cabinetry to replace the kitchen cabinetry. There is a contract with KELuxe Cabinetry dated July 15, 2016, addressed to and signed only by her, as well as the amount she paid. When cross-examined on this specific agreement, Vahid agreed that the contract produced by Halime with KELuxe Cabinetry was not a fake. In the proceeding, it was admitted as authentic.
[148] I accept her evidence as to all of her contributions.
Vahid’s alleged renovations
[149] Vahid obtained a number of affidavits from contractors with whom he has personal and business relationships.
[150] Before considering these affidavits, it is important to set out his conduct and evidence filed in support of an ex parte CPL motion.
The materials filed in support of Vahid’s CPL
[151] In June 2018, Vahid registered a Caution against the Ellis Property. Then on July 3, 2019, he issued a claim and on July 5, 2019, he brought an ex parte motion for a CPL. Master Muir did not grant the CPL and noted in his endorsement that Vahid lacked documentary evidence supporting the alleged financial contribution to the Ellis Property and that he could bring the motion back with further evidence.
[152] On July 25, 2019, he brought a further motion attaching four invoices made out in his name which were ultimately proven to be fake although there were obvious issues even within these invoices:
a) an invoice from KELuxe Cabinetry purportedly dated February 10, 2016, in the amount of $35,000. This invoice contains spelling errors in the name and email address. It is also dated five months before the contract that Halime entered into with KELuxe that has been produced and admitted to be authentic.
b) an invoice purportedly from Rewire dated December 15, 2015, in the amount of $15,481. This invoice refers to work done for Vahid on the Ellis Property in 2011 and between 2014-2015, which was mostly impossible because the closing of the Ellis Property did not occur until December 23, 2015.
c) an invoice purportedly from Halime’s aunt’s husband, Farshad Maghsoudi, dated January 5, 2016 in the amount of $65,000. Vahid admitted that Mr. Maghsoudi does not speak any English and could not have prepared this invoice. It also references $65,000 in work done between December 23, 2015, and January 5, 2016, which strains credulity in all the circumstances.
d) a handwritten invoice purportedly for roof work in the amount of $24,860. Halime gave evidence that there was never any work done on the roof of the Ellis Property and I accept her evidence.
[153] In his affidavit in support of the CPL, Vahid swore that he had obtained these invoices directly from the trades. He said, “I was able to contact a number of the trades that provided services to the Property. The trades provided me with the copies of the invoices they had available.”
[154] Halime’s motion to set aside the CPL included an affidavit from Mr. Peighambari, the owner of KELuxe Cabinetry, who said the invoice that Vahid had included in his materials was a fake.
[155] After she brought her motion, Vahid changed his evidence and said that he “found” the KELuxe invoice and implied that Halime could have planted it: “With regard to the KELuxe invoice, I found that invoice at my store. The defendant often attended the store and kept documents there. I did not prepare the invoice. I produced the invoice I found.”
[156] This is clearly inconsistent with his initial affidavit, and it makes little sense that Halime would have fabricated an invoice in Vahid’s name or that anyone else would have done this.
[157] As part of his responding materials, Vahid also submitted an affidavit purportedly from Carlton Haughton, the owner of Rewire, dated February 4, 2020, which claimed that Mr. Haughton had made the Rewire invoice for Vahid at Vahid’s request in 2019 and that the dates that he had put in the invoice were simply mistaken.
[158] On February 13, 2020, Master Sugunasiri, as she then was, found that the KELuxe invoice was a fake and ordered the discharge of the CPL with substantial indemnity costs. Justice Pollak upheld Master Sugunasiri’s order.
[159] At examination for discovery and at trial, Vahid then changed his story again and admitted that all of the invoices were fake and said he found all four invoices in a folder at his store and did not know from where they came. He again stated that Halime and he were the only ones with access to his store, implying that she had produced these fake invoices.
[160] In doing so, he was implicitly disavowing the February 4, 2020 affidavit from Mr. Haughton that he had previously filed, which said that Mr. Haughton had given Vahid this invoice at Vahid’s request and that the dates quoted in the invoice were simply mistaken.
[161] Thus, Vahid filed four fake invoices in support of his CPL. He admits to being able to read typed English and so was able to read at least the three that were typed. He would have seen who they were from, he would have seen what they were for as well as the amounts billed. He did not even allege at trial that he retained and paid either KELuxe or Mr. Maghsoudi to do work at the Ellis Property. I ask the rhetorical question; how could he not have known that the invoices he filed were fake?
[162] I agree that it is not remotely believable that someone else planted fake invoices in his business premises that he happened to find at the exact time that he needed them to obtain a CPL.
[163] I conclude on a balance of probabilities that Vahid is the one who either prepared or had these fake invoices prepared and then deliberately submitted them to the court to mislead the court.
Vahid’s trial evidence in support of his allegation that he contributed to the renovation of the Ellis Property.
[164] Overall, this evidence is also not credible, reliable or believable for reasons that I will set out with respect to each affiant’s evidence.
Mr. Haughton
[165] Mr. Haughton, who purportedly swore the February 4, 2020 affidavit which Vahid filed in respect of the CPL set aside motion, was one of Vahid’s witnesses at trial, too.
[166] Mr. Haughton provided a six-paragraph affidavit, dated October 19, 2021. It fit on one page and set out his evidence that he is a licensed electrician and had provided electrical work at 149 Henderson in 2012, then in 2013 at 58 Highland Park, and then in 2015 when he completed electrical work at the Ellis Property. In each case he stated only that he provided electrical work “in consideration of the payment of an agreed upon amount.”
[167] There were no other particulars, no contracts or invoices or other supportive documents attached and not even a statement as to how much Vahid had allegedly paid for this work.
[168] At trial, when Vahid was cross-examined, he stated that Rewire had never provided electrical work at the Ellis Property, which also conflicted with Mr. Haughton’s evidence.
[169] At trial, when Mr. Haughton was cross-examined, he agreed that he and Vahid were friends, that they had travelled together to Jamaica, and that he has worked with Vahid for more than 15 years. He believes he has worked with Vahid on most of Vahid’s projects. He is currently working on construction projects with Vahid in Thornhill, Newmarket and one other. He agreed that some of the addresses that he worked at set out in the affidavit could be mistaken.
[170] When asked about the Ellis Property, he initially said he was not sure he did work there, then changed his evidence and said he thought that the address was correct and that he did the electrical work for pot lights and five chandeliers. However, he ultimately indicated that no money changed hands and that Vahid was going to give him 14 toilets and some doors as payment, although he never confirmed that he even received these.
[171] He admitted that he did not recall doing work at 149 Henderson even though that is what his affidavit said.
[172] When Mr. Haughton was shown the December 15, 2015 invoice that Vahid had filed in support of his CPL, Mr. Haughton agreed that Rewire did not issue this invoice and insisted that if Vahid had asked him for an invoice years after the work was done, it would have the date of issuance on it. This was inconsistent with the February 4, 2020 affidavit that Vahid had submitted on behalf of Mr. Haughton.
[173] When Mr. Haughton was then shown the February 4, 2020 affidavit which stated that the only issue with the (now admittedly fake) December 15, 2015 invoice was the date of issuance, he first identified his signature, but then quickly disavowed the affidavit altogether. He said he did not remember ever seeing this document or reading it because it does not make any sense.
[174] He fled the courtroom once his cross-examination concluded and it was my impression that he realized he was being caught in a lie, which is why he disavowed the February 4, 2020 affidavit.
[175] The only other explanation is that Vahid had submitted a completely fabricated affidavit from Mr. Haughton in 2020.
[176] Either way, the credibility of Vahid’s overall case is seriously in question as a result of the above evidence.
Mr. Najib Muhsini
[177] Mr. Muhsini also provided a five-paragraph affidavit sworn on October 19, 2021. It said that in 2015 he sold several major appliances to Vahid and delivered them to his residence at the Ellis Property “in consideration of the payment of an agreed upon amount.”
[178] There was an invoice tucked behind his affidavit in the amount of $9,096 from Great Price Appliances made out to Vahid for a washer/dryer, stove, dishwasher, microwave, cooktop and dishwasher. It had the invoice number 2015-1000 and had Vahid’s address at 33 Glen Cameron Road in Thornhill.
[179] When Mr. Muhsini was shown another invoice from Great Price Appliances with the same invoice number that was made out to ReHomes, which was a company that Vahid and Halime jointly owned, he testified that sometimes people come to him and ask him to re-issue an invoice in another name and agreed that Vahid may have asked him to do this in this case.
Mr. Sunny Permaul
[180] Mr. Permaul also provided a five-paragraph affidavit, almost identically worded, also dated October 19, 2021, where he said that he is the owner of a company called Pro Windows and Door Ltd., and “provided all the windows and doors” for the Ellis Property “in consideration of the payment of an agreed upon amount.” No other details were provided, nor were there any supportive documents attached.
[181] When cross-examined, he indicated that he has supplied products to Vahid approximately 20 to 25 times in the past. He also indicated that Vahid had come to his store and picked up the windows and doors and so he did not see where these items would be used.
[182] He also testified that Vahid brought this affidavit to him and that he never met with Mr. Worsoff, who purportedly commissioned his signature on his affidavit. He said that he may have spoken to Mr. Worsoff’s secretary once.
Mr. Daniel Pierre-Louis
[183] Mr. Pierre-Louis also provided a five-paragraph affidavit, almost identically worded, also dated October 21, 2021, that stated that in 2015 he changed the roof shingles on the Ellis Property “in consideration of the payment of an agreed upon amount.”
[184] When cross-examined, he agreed that he had known Vahid for years, had worked on a variety of his projects, and is working on one of Vahid’s current projects, a daycare.
Mr. Faramarz Karamian
[185] Mr. Karamian also provided a five-paragraph affidavit, almost identically worded and also dated October 19, 2021. It said that in 2012 he provided renovations to 149 Henderson, which included installing hardwood floors, and that in 2013 he did so at 58 Highland Park, both “in consideration of the payment of an agreed upon amount.” He did not provide any details as to what the amount paid was or attach any documents whatsoever.
[186] Similarly to the others above, he indicated that he has known Vahid for nine years and has worked for Vahid more than a dozen times. He could not recall any properties that he worked on besides 58 Highland Park, 149 Henderson and, surprisingly, the Ellis Property, which he mentioned as well when cross-examined, even though it was not set out in his affidavit.
[187] Then, when counsel pursued a line of questioning as to why he could not recall the addresses of any other properties for which he provided services, he agreed that he could be wrong about the addresses that he mentioned.
Mr. Richard Makhlouta
[188] Mr. Makhlouta gave a four-paragraph affidavit, almost identically worded and also dated October 19, 2021, wherein he stated that in 2015, he provided renovations to the Ellis Property that included open risers on the main floor and steps and railings in the basement “in consideration of the payment of an agreed upon amount.”
[189] He also did not provide any details as to what the amount paid was or attach any documents whatsoever.
[190] When cross-examined, he also indicated that he met Vahid in 2012, has worked on between five and ten projects for Vahid since then, and could not recall the address for any of them. The only address he could recall was the Ellis Property and said he “believed” it was the right address. He is currently working on a project for Vahid that involves the construction of 25 accessible units.
[191] He also testified that he was hospitalized with COVID-19 and since that time his memory is “foggy.”
Mr. Enver Peker
[192] Mr. Peker also provided a four-paragraph affidavit, also dated October 19, 2021. In it, he said that he performed renovations to the Ellis Property, in particular regrouting of kitchen tiles and changing baseboards, but in 2017 this time, also “in consideration of the payment of an agreed upon amount.”
[193] He also did not provide any details as to what the amount paid was or attach any documents whatsoever.
[194] When cross-examined, Mr. Peker indicated that he met Vahid seven years ago and that he has worked on perhaps ten projects for Vahid.
Conclusion re. Vahid’s alleged contributions to the acquisition, maintenance, preservation or improvement of the Ellis Property
[195] The evidence from the parade of contractors called to testify must be considered in light of the incredulity of Vahid’s entire case, his conduct in filing fake invoices to obtain a CPL, the way in which the affidavits submitted at trial were obtained, and the complete absence of supportive documents.
[196] Because of the significant credibility concerns I have, I do not accept Vahid’s evidence that he does not have the documents necessary to prove his contribution because he was forced to leave the Ellis Property when he was criminally charged, allegedly losing access to all such supportive documents. In any event, this would not explain why his affiants would not have produced copies of invoices, emails, texts, or other records documenting what they were paid. It does not explain why he cannot point to any bank records that support any such alleged contributions or why no one has specified how much was paid for this alleged renovation work commissioned by him or has any records documenting what they received.
[197] As noted, these contractors all have lengthy past relationships with Vahid and generally are continuing to work for him. In all the circumstances, and without supportive documentation, I question why these witnesses would recall working at the Ellis Property (or 149 Henderson or 58 Highland Park) ten years ago as opposed to working at one of Vahid’s many other ongoing projects over the years. I do not accept their evidence as credible, reliable, or believable in all the circumstances set out above.
[198] I add that I had made an Order excluding witnesses and these witnesses were out in the hallway together. After each of them testified, I gave them explicit direction not to discuss their evidence or any questions they were asked after they testified.
[199] One of the lines of cross-examination related to whether some of these witnesses could be mistaken as to where they allegedly provided services or materials, in particular as to whether it was possible that such were provided to the nearby Bolton property that Vahid had also owned at the time.
[200] After a break and upon returning to the courtroom, Halime’s counsel advised that they heard two of Vahid’s witnesses in the hallway communicating about the Bolton property. I have no reason to doubt Halime’s counsel, who are officers of the court.
[201] The Bolton property had no particular relevance to the issues in this case and there is no obvious reason why the witnesses would be discussing the Bolton property. I infer that notwithstanding my explicit instructions, there was communication either among these witnesses or originating from Vahid as to the line of cross-examination that Halime’s counsel was pursuing.
[202] There was already enough evidence to conclude that Vahid’s independent evidence of his contributions was suspect, and this simply adds more fuel to the fire.
[203] Thus, Vahid has failed to establish that he made any specific contributions to the acquisition, preservation, maintenance, or improvement of the Ellis Property and that Halime was unjustly enriched as a result.
iii. Unjust Enrichment: Vahid has not proven that he and Halime were involved in a joint family enterprise.
[204] As I have indicated, this argument was raised late in the day when it became apparent that Vahid could not credibly show any specific contributions to the Ellis Property.
[205] Apart from the fact that Vahid has raised this for the first time in closing argument, Vahid conducted this litigation without any disclosure of the assets that he retained following the relationship breakdown, and without seeking disclosure of the assets that Halime retained following the breakdown of the relationship. As noted by McLachlin J. in Peter, at p. 1001, cited in Kerr, at para. 68, where unjust enrichment is claimed by virtue of joint family venture, it is “appropriate to look to all of the family assets, rather than simply one of them”.
[206] As noted, it is uncontradicted that there are at least four properties that Vahid did not share with Halime. Vahid continues to have a thriving renovation business and is currently working on at least three projects, one of which is a daycare and one of which involves the renovation of a 25-unit residence. It is difficult, on this record, to arrive at any conclusion that Halime was left with a disproportionate share of any allegedly jointly earned assets. Following the breakdown, Halime was not even able to pay the mortgage on the Ellis Property. There is also no evidence that she has gone on to continue buying and renovating properties as has Vahid.
[207] Furthermore, at the end of the relationship, it was Halime who had to pay the tax debt of Re Homes, their joint business because Vahid would not contribute. Further, Halime’s uncontradicted evidence is that Vahid received a 6-figure insurance payment from a fire at their rental premises which he kept himself.
[208] Thus, Vahid’s argument in this regard is to turn the principle of the joint family venture on its head so that he can seek one half of the only asset that remained in Halime’s name following the breakdown, without his having to share, let alone even disclose, his accumulated assets, and all the while denying her contribution.
[209] On the record before me, Halime and Vahid were not partners in a common venture that related to either the Ellis Property or all the properties that they each had accumulated over the years. Rather, they agreed to share some, and agreed that others were separately held. They did not fully integrate their finances.
[210] Vahid was free to pursue his own investment opportunities with his money and did.
[211] In portions of her examination for discovery, which was read in, Halime did admit that Vahid had assisted her in the past to a very limited extent in respect of her purchases before the Ellis Property. I note that the questioning in that regard was extremely limited and did not elicit many details. To the extent that Vahid may have contributed some value, which was not even significant enough for him to particularize, any such contribution was offset by his being able to live in the home (or homes he lived in) with Halime while she paid the mortgage(s) and all other expenses, and gave up the possibility of instead investing the money she spent to acquire the Ellis Property and earn income from it.
[212] Notably, the cases of common-law spouses where courts have discussed or imposed a constructive trust by virtue of a joint family enterprise with respect to a specific property, referenced by Vahid’s counsel, involve situations where the common-law spouses worked together to improve a specific property, or where one spouse’s domestic labour permitted the other spouse to accumulate wealth, not simply because they both lived together at a particular property[^3]:
[213] The facts before me are not remotely similar to the facts in these cases.
[214] There was no evidence that Vahid provided any domestic labour. The parties did not have children that he raised which would have allowed Halime to accumulate wealth.
iv. Vahid’s conduct at the time of the breakup.
[215] Additionally, Vahid’s conduct at the time of the breakup in 2017 demonstrates that he acknowledged that the Ellis Property was Halime’s and that he had no reasonable expectation to any interest.
[216] In or around April 2017, Halime’s and Vahid’s relationship became strained. Halime went to live with her mother. She says Vahid asked to remain in the home because he had family from Iran staying with him.
[217] Halime became concerned that Vahid might claim an interest in the Ellis Property on the basis that they were common-law spouses.
[218] She met with Vahid and told him she needed him to sign something “confirming the property was [hers] and that he would not interfere with her attempts to sell it.” He agreed although at this time, they agreed that Vahid could stay in the property until it was sold and pay $5,000 per month to cover carrying costs.
[219] Consistent with Halime’s evidence, the first handwritten note dated July 20, 2017, reads as follows:
Address: 123 Ellis Ave
Nobleton Ave L0G 1N0
As agreed between both part[ies] as part of separation dated in July. Halime Aghdasi is the sole owner of the above-mentioned property and as agreed she is solely to decided [sic] and sale [sic] the property without interfering and disturbing the transaction. I Vahid Mehdizadeh have no interest in the above property. I will pay the mortgage and payment of all expenses as agreed by both parties every month approx. amount of $5,000 until closing date.
I Vahid Mehdizadeh will pay the with credit card payment, TD, RBC and line of credit balance of $28000 in total of Halime Aghdasi within 6 months—
I Vahid Mehdizadeh will sale [sic] and take care of the Benz ML350 and sale [sic] it within amount and pay the negative balance.
[220] Halime says that they kept talking that day and then agreed that Vahid would leave instead immediately and would not have to pay the $5,000 per month.
[221] A second handwritten note, also dated July 20, 2017, reads:
I Vahid Mehdizadeh will leave the premises of 123 Ellis Ave on July 20, 2017 and No Longer Live there as I have agreed to and acknowledge that Halime Aghdasi is the sole owner and I do not have [an] interest in property as common in-law.
[222] Halime says she was worried he would try to deny these agreements later and so asked him to email pictures of the signed documents and confirm he had copies.
[223] There is an email from Vahid to Halime dated July 20, 2017, at 12:52 p.m. attaching pictures of both which reads:
Hi, halime aghdasi
True copy of our agreement dated July 20th
I have received a copy and agree with all the terms set in hand written agreement.
[224] In his affidavit dated November 17, 2023, Vahid says that these documents are fraudulent and that he was “unable to read handwritten English and was not the one who prepared the handwritten note(s) presented” by Halime. He says that she fraudulently led him to believe that he was signing a rental agreement to rent out a floor of the Ellis Property and there was no discussion of ownership rights and no opportunity to get legal advice.
[225] I do not accept his evidence for the following reasons:
• Apart from Vahid’s inability to raise even a single credibility issue about Halime’s testimony, what also makes Halime’s evidence about the July 20 notes believable is the fact that there are two, one that begins with Vahid remaining in the home and then a subsequent one which revises that as the parties continued to talk that day.
• His explanation that he thought the notes were simply to permit Halime to rent the Ellis Property out does not explain why he would have signed two documents.
• Vahid’s current position is somewhat at odds with Vahid’s October 2019 affidavit where he says that he “speak[s] and understand[s] English. [He is] able to read English but need[s] to do so very slowly.” I note here that these notes may be handwritten, but they are written legibly.
[226] Additionally, I have significant concerns about Vahid’s evidence that he can only read English slowly and could not read or understand the handwritten notes for the following reasons:
• Halime, whom I found credible, states that Vahid’s facility with the English language is very good and that he can read handwritten English. I accept her evidence.
• Vahid testified with an interpreter, which was his right and which I do not question. However, it was clear from the two days of his cross-examination that he can read English very well, and quickly at that. Halime’s counsel placed multiple documents on the large screen in front of Vahid, written in English, and referred him to various provisions asking questions like: “In this paragraph of your affidavit, you said this. Do you see that?” or “This document says this, do you see that?” I then watched as time and time again, Vahid read the paragraph in question on the large screen in the courtroom, and answered immediately, every single time, acknowledging what the document had said. This occurred approximately fifty times. He corrected some questions that did not properly reflect what was in the document. He even leaned in at times to see the large screen better when reading the documents and even appeared to squint when counsel used a double CaseLines screen which made the print smaller. He could still read the document with ease and answered quickly.
• The first note references a BENZ ML350 which he said he could see when cross-examined. He could not provide a good explanation as to why there would be a reference to this car that they owned if he thought the document he signed was something to permit Halime to rent out a floor of the Ellis Property.
• He was asked whether he could see that the document references TD, RBC and a payment of $28,000 and he could. Again, he had no good explanation as to why these terms would be in the note if he thought this was simply about renting the Ellis Property.
• After having agreed in court that he could see that this is what these documents said, he then reverted to the explanation that he could not read them.
• He also could not satisfactorily explain why he would have trusted Halime and signed two documents when they had already been having difficulty in their relationship and separated for approximately four months at that time. I reject his evidence that she had been going to the Ellis Property and stayed over sometimes.
• He also could not provide a persuasive explanation as to why he would not have asked Halime to write the documents in Farsi.
• He ultimately admitted that he could read some of the July 20 notes.
• Finally, when Vahid testified about what made him seek a CPL, he explained that he had driven by the Ellis Property sometime in June 2019 when he heard that it was for sale. He thought the price might be good and so he wanted to buy it from Halime, who owned it. He said this several times until he must have recognized this was inconsistent with his position in the proceeding, and then again revised his evidence. Thus, Vahid’s expressed belief in June 2019, two years later, was entirely consistent with the July 2017 note that he signed and that he says he was tricked into.
• In my view, because Vahid was caught with having submitted fabricated invoices in court, and to undermine the acknowledgement he signed in English about the Ellis Property, he has exaggerated or lied outright about his claim that he does not have a good facility with reading the English language.
[227] With respect to the email purportedly from him, his explanation was that Halime had access to his email account and had sent this email to herself by breaking into his account. There is no evidence to support this apart from his testimony. As well, at the time of this email, Vahid was still living at the Ellis Property, and he confirmed that the coffee table in the photo is a coffee table in the Ellis Property.
[228] And so, in circumstances where I have actual evidence that Vahid has submitted fake invoices as well as questionable affidavit evidence, I am asked to conclude that Halime in fact forged documents, when not one single issue of credibility in her testimony was raised.
[229] I wholly reject Vahid’s evidence on this issue and accept Halime’s.
[230] Thus, I reject Vahid’s claim to a resulting trust, or a constructive trust based upon unjust enrichment. I add that Vahid comes to court with very unclean hands all the while claiming the Court’s equitable assistance.
b) Are the July 20, 2017 notes signed by Vahid and Halime a separation agreement and if so, should they be set aside pursuant to ss. 56(4)(a) and 56(4)(b) of the Family Law Act as statute barred? Should they be set aside by reason of undue influence, duress or unconscionability?
[231] Section 56(4) of the Family Law Act provides as follows:
Setting aside domestic contract
(4) A court may, on application, set aside a domestic contract or a provision in it,
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
(b) if a party did not understand the nature or consequences of the domestic contract; or
(c) otherwise in accordance with the law of contract.
[232] There is a dispute here as to whether the July 20, 2017 notes are domestic contracts.
[233] I begin by stating that even if the July 20, 2017 notes are domestic contracts and there was a basis to set them aside, I would have made the exact same findings in respect of the Ellis Property. That is, the parties held some properties together and some independently or with others. Even without the July 20 notes, the evidence demonstrates that the Ellis Property was a Halime property. The July 20 notes were nothing more than her getting this in writing from Vahid because she feared that he would seek to claim the Ellis Property in spite of their understanding, and it turns out her fears were correct.
[234] On Arpiln19, 2024, Vahid amend his counterclaim to seek an order setting aside the July 20 notes on the basis of s. 56(4). The claim to set aside the July 20 notes is not a mere request for a declaration, as Vahid also seeks consequential relief in respect of the Ellis Property. Therefore, the two-year limitation period applies: Karkhanechi v. Connor, Clark & Lunn Financial Group Ltd., 2022 ONCA 518, at para. 37.
[235] Vahid’s claim in this regard was discoverable shortly after Halime’s Statement of Claim referencing these handwritten notes was issued on July 3, 2019 and he responded by pleading that he was unable to read them, and that Halime had fraudulently or negligently represented what these notes were. Having raised the claim to set aside these notes for the first time on April 19, 2024, when the Statement of Defence and Counterclaim was amended, this claim is out of time.
[236] In any event, I would not set these notes aside on the evidence before me.
[237] I adopt and apply Matheson J.’s approach to domestic agreements set out in Moses v. Metzer, 2016 ONSC 1765, 129 O.R. (3d) 641, at paras. 104-10 and 132-38, rev’d on other grounds 2017 ONCA 767, 10 R.F.L. (8th) 271. There is a two-stage approach to the application of s. 56(4) as follows:
• First, the party must establish one of the circumstances in s. 56(4).
• If so, then the court considers whether it is appropriate to exercise the court’s discretion to set aside the domestic contract.
[238] None of the circumstances in s. 56(4) exist.
• Non-disclosure of significant assets or debts: The fact that the parties did not exchange financial statements does not mean that Halime did not disclose significant assets or liabilities. The only asset claimed by Vahid owned by Halime is the Ellis Property and Vahid knew about it and her debts are not relevant. This case is not like Tadayon v. Mohtashami, 2015 ONCA 777, 341 O.A.C. 153, where there was a specific finding of fact that the respondent husband had failed to truthfully disclose and misrepresented his income at the time the parties entered into a revised separation agreement: at paras. 19-25.
• Understanding the nature and consequences/mistake: I accept Halime’s evidence that they discussed the contents of the July 20 notes before Vahid signed and he agreed orally. Therefore, even if I accepted that Vahid cannot read handwritten notes in English (which I do not), he knew what he was signing based upon their conversation at the time: Grant-Hose v. Grant-Hose (1991), 1991 CanLII 12846 (ON SC), 32 R.F.L. (3d) 26 (Ont. U.F.C.), at paras. 36-37.
Undue influence: There is no presumption of inequality or undue influence simply because the parties were in a relationship and because they were undergoing the stress of a separation. “[T]here must be evidence to warrant the court’s finding that the agreement should not stand on the basis of a fundamental flaw in the negotiation process”: Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, at para. 82. Vahid did not establish any undue influence. There was no inequality of bargaining power. Vahid was as sophisticated as Halime. He could have sought legal advice. Halime in no way victimized Vahid: Hyldtoft v. Hyldtoft (1991), 1991 CanLII 12868 (ON SC), 33 R.F.L. (3d) 99 (Ont. Gen. Div.); Heaton v. Heaton (1988), 1988 CanLII 8643 (ON SC), 17 R.F.L. (3d) 57 (Ont. Dist. Ct.); and Grant-Hose.
• Duress: Vahid was not compelled to sign these notes through any fear of actual or threatened harm, intimidation or illegitimate pressure. The fact that Halime told him that she would litigate and that this would result in legal fees if he did not sign is not evidence of duress: Ludmer v. Ludmer, 2013 ONSC 784, 33 R.F.L. (7th) 331, at para. 55; Stergiopoulos v. Von Biehler, 2014 ONSC 6391, 52 R.F.L. (7th) 470.
• Unconscionability: There were no circumstances of oppression, pressure or other vulnerabilities. Halime was not a stronger party who took unfair advantage of Vahid. The fact that Halime is a real estate agent does not mean that she was in a better position than Vahid. He has extensive knowledge of the construction and renovation industries. There was nothing improvident about the July 20 notes which only documented the parties’ pre-existing understanding. Vahid gave up no assets that belonged to him.
The fact that Vahid was charged with criminal harassment of Halime on August 4, 2017, two weeks later, is irrelevant as it took place after he signed these notes.
[239] In all the circumstances, I would not exercise my discretion to set aside the July 20 notes.
c) Are the July 20, 2017 notes a basis to deny Halime’s claims in respect of the Deerfield Property?
[240] I find that the July 20 notes are not a basis to deny Halime’s claims in respect of the Deerfield Property.
[241] The July 20 notes do not reference the Deerfield Property at all. They also do not reference other joint interests the parties had, including Re Homes. Halime’s evidence, on which she was not cross-examined, is that she drafted the July 20 notes because of her fear that Vahid would make a claim for the Ellis Property even though they had always understood it was hers. This conversation and note were just the beginning of their sorting out their situation. She said that at the conclusion of the July 20 meeting, Vahid assured her that she was a registered owner of the Deerfield Property, that she need not worry about it, and that they would address it at their next meeting, which never occurred because Vahid was arrested on August 4, 2017. I accept her evidence.
[242] These parties are not lawyers. The fact that Halime did not include some joint assets in the July 20 notes does not mean that the parties had agreed that she was no longer entitled to an interest in the Deerfield Property. I repeat that even at trial, Vahid conceded that his understanding was that the Deerfield Property was jointly owned.
d) Did Vahid improperly register the Caution and CPL over the Ellis Property? Did such registration cause damage to Halime and if so, what is the quantum of such damages?
[243] Halime seeks damages pursuant to the causes of action created by s. 132 of the Land Titles Act and s. 103(4) of the Courts of Justice Act.
[244] Section 132 of the Land Titles Act provides that:
132 A person who registers a caution without reasonable cause is liable to make to any person who may sustain damage by its registration such compensation as is just, and the compensation shall be deemed to be a debt due from the person who has registered the caution to the person who has sustained damage.
[245] Section 103 of the Courts of Justice Act similarly provides in relevant part that:
103 (1) The commencement of a proceeding in which an interest in land is in question is not notice of the proceeding to a person who is not a party until a certificate of pending litigation is issued by the court and the certificate is registered in the proper land registry office under subsection (2).
(2) Where a certificate of pending litigation is issued under subsection (1) it may be registered whether the land is registered under the Land Titles Act or the Registry Act.
(4) A party who registers a certificate under subsection (2) without a reasonable claim to an interest in land is liable for any damages sustained by any person as a result of its registration.
[246] To prove these statutory causes of action, a plaintiff must show that a defendant has registered a CPL or Caution without reasonable cause and actual damages resulted: Captain Developments Ltd., at paras. 49-50; Hornstein; 11 Suntract Holdings Ltd. v. Chassis Service & Hydraulics Ltd. (1997), 1997 CanLII 12181 (ON SC), 36 O.R. (3d) 328 (Gen. Div.), at para. 51. See also Neighbourhoods of Cornell Inc. v. 1440106 Ontario Inc. (2006), 51 R.P.R. (4th) 176 (Ont. S.C.), at paras. 21-22.
[247] For all the reasons set out above, Vahid did not have a reasonable claim to an interest in the Ellis Property. These include: i) his signing an acknowledgement to that effect on July 20, 2017; ii) the absence of any evidence to support any reasonable belief in any interest which was made eminently clear by the fake invoices he filed in court as well as the evidence before me at trial; iii) his trial evidence that he had decided to buy the Ellis Property from Halime in or around June 2019, which is inconsistent with his subsequent registration of a CPL; and iv) my conclusion that he did not contribute to the acquisition, maintenance or improvement of the Ellis Property and that he knew that this was the case.
[248] However, I conclude that Halime’s damages are much less than what she asserts.
The Caution
[249] Vahid registered the Caution in May 2018 shortly before Halime says she began seeking to refinance her mortgage on the Ellis Property with TD Bank. This Caution was only for 60 days. Shortly afterwards, Halime says that TD Bank rejected her mortgage application implying that this was because of the registration of the Caution. However, she did not call any evidence from TD Bank to support the connection between TD’s rejection and the Caution. Her evidence of why TD Bank did not give her a mortgage is inadmissible hearsay.
[250] Halime says that she then spent several months trying to find a lender who would be prepared to refinance the Ellis Property. At the time she sought to refinance the mortgage, the prime rate was 3.45 percent, and by October 2018 it had gone up to 3.95 percent.
[251] Six months later, Halime replaced her $750,000 mortgage with RBC with an increased mortgage from Street Capital in the amount of $900,000, but at a higher interest rate. Her mortgage payments went from $2,924 per month to $4,733 per month. Halime implied that the increased mortgage rate was because of the Caution, but by the time of this mortgage with Street Capital, the Caution was already off the title and the CPL had not yet been registered. She called no evidence from Street Capital to support the conclusion that the increased interest rate was because of the Caution. I note as well that the mortgage payments increased at least in part because she increased the principal amount of the mortgage. I note as well that she provided no analysis of the portion of the increased mortgage payment that related to the increase in the interest rate as opposed to the increased principal.
The CPL
[252] Halime says that the new carrying costs made it uneconomical for her to keep the Ellis Property and she decided to sell it.
[253] She listed the Ellis Property for sale in June 2019 for $1,599,000, saying that she intended to use the multiple offers strategy. She received an offer for $1,640,000 which she did not accept because she thought the property was worth more.
[254] She learned of the CPL shortly thereafter which prevented a sale.
[255] Her tenants then gave notice that they would be terminating their lease on December 3, 2019.
[256] Without the rental income, Halime defaulted on her December 19, 2019 mortgage payment and Street Capital threatened to foreclose on the mortgage by February 19, 2020, if she did not have a firm offer in hand.
[257] Halime says that she only had six days following the discharge of the CPL before Street Capital would foreclose. The best offer she received in that limited window was for $1,399,000 and she accepted it.
[258] Halime called no evidence on the real estate market either before or after the CPL. Rather, to support her claim for $900,000 in damages she provided evidence of a subsequent sale of the Ellis Property, one year and eight months later, when it sold for $2,300,000. She claims the difference between this amount and what she sold it for, $1,399,000 which is $900,000.
[259] Halime argues that “but for” the Caution and the CPL the logical inference is that she would have continued to hold the Ellis Property and was forced to sell it at a distressed price. She cites Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 12, which holds that a “but for” cause need not be the only or the principal cause of the harm suffered. It simply needs to have been one component that was necessary to cause the plaintiff’s loss.
[260] In my view, the evidence in respect of the impact of the Caution on her carrying costs and ability to keep the property has not been proven on a balance of probabilities.
[261] As well, I do not accept Halime’s argument that the logical inference is that she would have kept the Ellis Property until in or around November 2021 which is when it sold for $2,300,000. She says she asked Vahid to sign the July 20 notes in 2017 so that she would be able to sell it; therefore, she was contemplating that at that time. She also increased principal amount of the mortgage when she refinanced it in or around December 2018; therefore, she must have been having some financial issues.
[262] She said she decided to sell in June 2019 because of increased carrying costs and in my view, but for the CPL, she would have been able to do so in or around that time.
[263] The best indicator of what a property is worth is what it will sell for on the open market. Given that she received an offer in the amount of $1,640,000 in June 2019, I conclude that this is the best evidence of the market value at that time and that but for the CPL, Halime would have sold it in or around that time for an amount which is approximately this much.
[264] Therefore, she suffered damages in the amount of $1,640,000 - $1,399,000 = $241,000.
e) Is Vahid entitled to repayment of the costs orders made against him in the amount of $32,639 when the court ordered that he must discharge the CPL?
[265] Vahid demonstrated no basis in law for him to recover these amounts.
f) Did Halime convert various jointly owned luxury items owned by Vahid, and if so, what are his damages?
[266] I dismiss this claim as Vahid has not proven it.
[267] Vahid’s trial affidavit says that Halime converted luxury items owned by him, including a $400,000 antique Persian rug, luxury furniture, an antique piano, and $100,000 worth of tools.
[268] Vahid provided no evidence regarding the existence of these items or their value. There are no purchase invoices, no emails evidencing their purchase, no photographs of them (apart from a photo in the email that he sent her confirming her interest in the Ellis Property), no credit card statements showing payment for them, and no evidence whatsoever of these alleged items’ value apart from his bald statements.
[269] As well, the only witness offered by Vahid ended up proving the exact opposite of what Vahid sought to prove.
Mr. Kamal Tadashi
[270] Mr. Kamal Tadashi’s affidavit is five-paragraphs long, dated October 19, 2021, and similarly worded to the other affidavits he submitted.
[271] Mr. Tadashi’s affidavit stated the following:
[I]n September 2017, Mrs. Halimeh K. Aghdasi had come to my store and requested that I buy the rugs present in Vahid Mehdizadeh Asiyaban’s residence located at 123 Ellis Ave, Nobleton, ON L0G 1N0, in order to sell them for her. I declined her request because I sold the rugs in question to Vahid Mehdizadeh Asiyaban and did not know if he wanted to sell them. I told her to ask Vahid Mehdizadeh Asiyaban directly about the possibility of me buying them out from him. The next day, a man who identified himself as Fahad and claimed to be Mrs. Halimeh K. Aghdasi’s boyfriend came to my shop and made the same request, which I again declined.
[272] Given Halime’s claim that she solely owned the Ellis Property, it would be an odd thing for her to attend at Mr. Tadashi’s and to word such a request in this way, by referencing the residence as Vahid’s.
[273] It was also apparent that Mr. Tadashi did not speak English at all when he first arrived at court. His affidavit was in English, and it did not have the jurat required by r. 4.06 indicating that it had been translated for him. And so, he was recalled the following day when a translator could be present.
[274] When Mr. Tadashi testified and the affidavit was interpreted to him, he gave the exact opposite evidence to what was in the affidavit. He testified that Halime came to his shop to sell some rugs that she had purchased from him as well as other rugs owned by her and that he told her that the market was not good to sell these at that time.
[275] I accept Halime’s evidence Vahid had an opportunity to remove items that were his.
g) Is there a basis for an award of punitive damages?
[276] Halime claims $500,000 in punitive damages. I award $100,000.
[277] In Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 36, the Supreme Court held that punitive damages are awarded in exceptional cases where the defendant’s conduct is “malicious, oppressive and high-handed”, “offends the court’s sense of decency” and demonstrates “marked departure from ordinary standards of decent behaviour.”
[278] They should only be awarded when the combination of general and aggravated damages would not sufficiently “achieve the goal of punishment and deterrence”: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at p. 1208. There must be an independent actionable wrong: Hornstein, at para. 6.
[279] Some of the factors the court may consider in awarding punitive damages include:
a. whether the misconduct was planned and deliberate;
b. the intent and motive of the defendant;
c. whether the defendant persisted in the outrageous conduct over a lengthy period of time; and
d. whether the defendant attempted to conceal or cover up his misconduct: Whiten, at para. 113.
[280] In this case, Vahid’s conduct rises to the very high level of being oppressive, high handed, and it does shock this court’s conscience for the following reasons:
• He deliberately fabricated invoices and submitted them to the court with the purpose of obtaining a CPL over property he had no reasonable claim to an interest in. When caught, he tried to cover this up and enlisted other witnesses, in particular Mr. Haughton, in this endeavour. He continued with the falsehood that he did not know where these invoices came from throughout the trial.
• Reasonable people often disagree. People see things differently and sometimes memories are distorted to be in line with a witness’ position; this is human nature. A person who tells the truth to the best of their ability and loses should not be in the same position as a person who fabricates evidence in order to win. Were that the case, there would be little disincentive to this kind of litigation conduct.
• Fabricating evidence is fraud and thus an independent actionable wrong and an abuse of process. Deliberately lying in court is perjury which is also an independent actionable tort. Suborning perjury is also an independent actionable wrong and I find that Vahid suborned Mr. Haughton’s untruthful evidence related to his February 2020 affidavit.
• In Hilltop Group Ltd. v. Katana, 2002 CanLII 9075 (Ont. S.C.), at paras. 10-11, the court directed that improper litigation conduct can result in a punitive damage award. See also McCabe v. Roman Catholic Episcopal Corporation for the Diocese of Toronto in Canada, 2019 ONCA 213 at para 43.
• Deliberately instituting legal proceedings without reasonable and probable cause for a malicious purpose is also an independent actionable wrong, the tort of malicious prosecution.
• Vahid instituted this proceeding claiming an interest in the Ellis Property without reasonable and probable cause for all the reasons set out above. I conclude that the reason for Vahid’s conduct was spite, ill will and to interfere with Halime’s economic interests following their breakup because of his belief that Halime had been unfaithful and the fact that he was criminally charged. In that regard, as of July 20 2017 he had acknowledged Halime’s ownership of the Ellis Property and her continued interest in the Deerfield Property. It was only after he was charged on August 5, 2017 that he resiled from these acknowledgements. Further, there is no persuasive explanation in particular for his unreasonable conduct regarding the Turkey property throughout this litigation, other than spite or to interfere with her economic livelihood. He has put her through years of litigation with claims that made no sense and collapsed in the end.
[281] I agree with Halime that “[t]his is not the kind of litigation conduct that can be compensated with costs, even at an elevated scale. It is malicious and a marked departure from the ordinary standards of decency in litigation and must attract a punitive damages award.”
[282] I further agree with Halime’s submission that “[m]any women in [her] position—an immigrant with limited liquid assets and whose ex-romantic partner was abusing the Court system to threaten and intimidate her—would not have had the resources to fight back. Left unpunished, intimidation tactics like Vahid’s could well succeed.”
[283] I conclude that the damages assessed above would be insufficient to address Vahid’s conduct, or to achieve the objective of condemnation.
[284] I agree that an award of this size is required to serve the objectives of denunciation and deterrence. There is also precedent for an award of this size in Galea v. Wal-Mart Canada Corp., 2017 ONSC 245, 44 C.C.E.L. (4th) 251, at para. 296.
Conclusion
[285] Therefore:
• I declare that 246 Ontario holds the Deerfield Property as to 50 % on behalf of Halime, either by way of resulting or constructive trust as a remedy for unjust enrichment.
• I order the Land Registry Office of York Region to amend the Register for the Deerfield Property by registering Halime as a 50 % owner.
• I dismiss Vahid’s claim to an interest in the Ellis Property.
• I find that Vahid’s registration of the Caution and the CPL was unreasonable within the meaning of the Land Titles Act and the Courts of Justice Act and that Vahid is liable to Halime in damages for the registration of the CPL in the amount of $241,000.
• On consent, I order that Vahid provide any consents necessary for Halime to cure any issues related to the mortgage of the Turkey Property.
• I dismiss Vahid’s claim for relief under s. 56(4) of the Family Law Act as statute barred under the Limitations Act.
• I dismiss Vahid’s claim for relief in respect of chattels allegedly taken by Halime.
• I dismiss Vahid’s claim to be reimbursed for legal costs awards made against him in the CPL proceedings as well as his claim in respect of commissions he is allegedly owed.
• I dismiss all other claims made by Vahid.
• I award Halime $100,000 in punitive damages.
• The parties may arrange a case conference to address the income and carrying costs of the Deerfield Property.
[286] The parties may make submissions in respect of costs and interest no longer than 5 pages each with Halime’s to be submitted within 5 days and Vahid’s within 5 days thereafter.
Papageorgiou J.
Released: June 17, 2024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HALIME KHATOUN AGHDASI
Plaintiff
– and –
VAHID MEHDIZADEH ASIYABAN and 2468692 ONTARIO LTD.
Defendants
REASONS FOR JUDGMENT
Papageorgiou J.
Released: June 17, 2024
[^1]: They were involved in two businesses. The first Tankless City was a heating and air conditioning business where they purchased tankless appliances and sold them. Halime would market and sell the units and handle day to day administration. Then, by 2013 this business had evolved and so they began Re Homes whose focus was to import building materials from China and do renovations. Halime would do the ordering, receiving and other administrative tasks. They each drew living expenses as needed from this business.
[^2]: There was an email related to the criminal complaint that was marked as an Exhibit for identification pending my decision as to whether it was admissible. Since this claim was withdrawn the issue is moot.
[^3]: Murdoch v. Murdoch, [1973] 1 S.C.R. 423 involved a farm where spouses had worked together for 15 years to progressively purchase larger and larger farms. The majority rejected the appellant wife’s contention that she had a right to share in the successive purchases of ranch properties because what the appellant wife had done was no more than work that would be done by any ranch wife. Laskin J. dissented, finding that the appellant wife had made a substantial contribution to the successive properties and that the evidence was consistent with a pooling of efforts; Rathwell v. Rathwell, 1978 CanLII 3 (SCC), [1978] 2 S.C.R. 436 also involved a decision by spouses to make farming their way of life. The spouses had pooled their savings in a joint account, and then purchased progressively larger farms. Although title was held in one spouse’s name, the couple worked together in the farming venture as a team. While one worked on the land, the other did the chores, looked after the garden, canned the produce, milked the cows, drove machinery, provided meals and transportation for hired help, and kept the books. The five-member majority found that there was a presumption of a resulting trust by virtue of the fact that the wife’s funds in the joint account were used to purchase the first property, which then flowed into subsequent properties. Three of the five-member majority would also have imposed a remedial constructive trust on the basis that the husband was able to acquire legal title through the parties’ teamwork; Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834 involved a common-law relationship where a man and woman both contributed their effort, labour and earnings to a beekeeping business on a rural property. The majority found that there was no resulting trust because there was no express or implicit intention to create it, as the parties did not have an express arrangement for sharing economic gain. However, a constructive trust could be imposed because the man had had 19 years of the woman’s unpaid labour while she received nothing in return. The court found that it would be unjust to deny her claim when the man had accepted benefits that the woman conferred in the reasonable expectation that she would receive an interest in the property. Each had worked continuously and unremittingly in the joint effort and contributed to the common enterprise; In Peter, there was a common-law relationship where the mother had done the domestic work in the household and raised children without compensation while the father generated the family income. She did projects at a property purchased by the father that included gardening, planting a hedge and painting to maintain it. She was solely responsible for the property when the father was away. The court concluded that the mother’s contribution to the family enterprise was considerable and saved the father’s money that he used to pay off mortgages and accumulate family assets.