COURT FILE NO.: FS-15-00083320-0000
DATE: 2024-07-31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sara FATAHI-GHANDEHARI
Applicant
- and -
Stewart WILSON
- and -
Elizabeth WILSON
- and -
Abrahams LLP
Respondents
COUNSEL:
- R. SCOCCO, for the Applicant
- P. ROBSON, for the Respondent Stewart Wilson
- K. LEWIS, for the Respondent Elizabeth Wilson
- P. SIMM and B. PHILLIPS, for the Respondent Abrahams LLP
HEARD: November 1 and December 11, 2023 and in writing. Written submissions completed January 8, 2024.
REASONS FOR JUDGMENT
LEMAY J
[1] The Applicant, Sara Fatahi-Ghandehari (“the Applicant”) and the Respondent, Stewart Wilson (“the Respondent”) met in 2005, married in August of 2007 and separated in December of 2014. They have been embroiled in litigation ever since that time. Over the past eight and a half years, the litigation has been managed by three case-management judges, Price J., Daley J. and myself. It includes a matrimonial claim and numerous other actions and claims brought by the parties against each other. In some of the other actions, the Applicant was the Plaintiff and in others she was the Defendant. For ease of reference, I will refer to the parties as the Applicant and the Respondent throughout these reasons.
[2] In addition, the Respondent was, at one point, a bankrupt. As a result of both the bankruptcy process and what appear to be other litigation strategies, some of the Respondent’s rights in various actions were sold to the Respondent’s mother, Elizabeth Wilson (“Ms. Wilson”). In addition, the title to the property where the Respondent currently lives is in Ms. Wilson’s name, although the Applicant has asserted that the Respondent is the beneficial owner of the property. This assertion has been accepted by the Court as against the Respondent. However, it was not clear as to whether this disposition also bound Ms. Wilson.
[3] Finally, there are a series of other actions that involve the Respondent’s business partner and the Applicant’s former counsel. The disposition of those actions is, to a certain extent, tied up in the disposition of the issues before me.
[4] I have been case-managing this complex and difficult series of actions for the past four years. There was originally an undefended trial in the matrimonial action (see 2021 ONSC 3547) that resulted in a number of issues being resolved in the Applicant’s favour. My disposition of that matter was upheld by the Court of Appeal.
[5] This decision addresses the consequences of the outcome of the matrimonial action on the other actions. It also addresses the role of Ms. Wilson in these actions, her rights within these actions and the consequences of the findings throughout the matrimonial litigation on her. It also addresses some outstanding matters in these actions, including the Applicant’s request to have me change my decision on the disposition of two cars that were removed from the Respondent’s possession a number of years ago and the monies that I ordered to be paid to a bailiff who stored the cars for a half a decade (2022 ONSC 6773).
[6] For the reasons that follow, I have determined that the Respondent’s rights to proceed with his other claims in this matter, including his claims against the Applicant’s former counsel, are extinguished by the outcome of the matrimonial litigation. In addition, I have concluded that Ms. Wilson has no more rights than the Respondent in any of the actions before the Court that she has purchased. In addition, I have concluded that the Court’s previous findings in respect of the beneficial ownership of the home where the Respondent lives also bind Ms. Wilson. Finally, I have dismissed the Applicant’s motion to have the orders in respect of the monies payable to the bailiff varied. Based on this disposition, I will set out the next steps in this action at the end of these reasons.
Background Facts
a) The Parties
[7] The Applicant and the Respondent met in 2005. They were married on August 12th, 2007, and separated on December 4th, 2014. There were no children of the marriage.
[8] During most, if not all, of the marriage, the Respondent ran a business renting exotic cars. It was a profitable business and, based on my findings in the matrimonial action, remains a profitable business today. During the relationship and marriage, the Applicant worked in the Respondent’s business providing administrative support and doing the banking.
[9] The evidence discloses that the Respondent had a business partner, Mr. Jason Braidmore, in his exotic car business. It is not clear to me what the relationship between the Respondent and Mr. Braidmore is. The Respondent has sued Mr. Braidmore, but Mr. Braidmore has not participated in any meaningful way in any of the litigation currently before the Court for years. Mr. Braidmore has counsel, a Mr. Richard Watson.
[10] The Respondent also had counsel, Mr. Paul Robson, for much of this case. Mr. Robson was the subject of a law society complaint in this matter, which resulted in Mr. Wilson bringing an action against the Law Society of Ontario (“LSO”). That action has previously been dismissed. Mr. Robson was disbarred shortly after the conclusion of the oral arguments in December of last year. He was also suspended by the LSO at certain points and the Respondent had an agent, a Mr. Samir Chhina, who acted for him from time to time when Mr. Robson was unavailable.
[11] The Respondent resides at a property municipally known as 9860 Highway 20, Smithville, Ontario (the “Smithville Property”). Legal title to the Smithville Property is in the name of the Respondent’s mother, Elizabeth Wilson. Ms. Wilson is also a party to some of the ongoing litigation in this case as she has purchased the ownership interest in the corporate Plaintiff in Court File No. 118/15 as well as the Respondent’s interests in that action.
[12] The four other parties that are involved in this case at this point are Associated Bailiffs and Co. Ltd. (“Associated Bailiffs”), the Abrahams law firm, Mr. Shahzad Siddiqui and Mr. Omar Khayyam. Associated Bailiffs became involved in this case when they seized two cars (a Ferrari and a Dodge Charger) on behalf of the Applicant.
[13] The Abrahams law firm, Mr. Siddiqui and Mr. Khayyam represented the Applicant and/or were her agents for significant portions of this action. They have been sued by the Respondent for allegedly accepting monies from the Applicant that they knew belonged to the Respondent and had been fraudulently taken by the Applicant. There was also an allegation (in the reply) that this conduct was a violation of the Rules of Professional Conduct. I will refer to this as the Abrahams action. As I will set out below, the Respondent’s claims against Abrahams LLP and Mr. Siddiqui are dismissed.
b) The Litigation to 2020
[14] Around the time of separation, the Applicant commenced a family law proceeding. As part of that proceeding, she raised the following issues that are important to my disposition of this motion:
a) A claim that all the monies in the matrimonial home were from her inheritance.
b) A claim for equalization of all of the net family property.
c) A non-depletion order.
d) Spousal support.
[15] The Respondent did not file a Response in a timely way, and I will return to this issue below. He did, however, bring an action against the Applicant, her mother and a numbered company (2246519 Ontario Inc.), claiming fraud, fraudulent misrepresentation and other causes of action. This is the action set out in Court File No. 118/15.
[16] Some history is required to explain this action. At some point in 2011, the Respondent made an assignment into bankruptcy. As a result, at the time that the parties separated, the cars that the Respondent used to run the business were in the possession of a numbered company whose sole shareholder was Ms. Farzaneh Yaghinali, the Applicant’s mother. They had been transferred to the numbered company approximately a year prior to the Respondent making the assignment into bankruptcy.
[17] As a result of this ownership structure, the Respondent brought the action described in paragraph 15, claiming that he was the beneficial owner of the cars and seeking to have them returned to him. This was part of the relief set out in Court File No. 118/15. On March 3rd, 2015, Gray J. found that the cars were beneficially owned by the Respondent and ordered them returned to him. He also granted a CPL against the property on Delhi Road that was owned by the Applicant. Gray J. also directed that the Trustee in Bankruptcy be given notice of his Order.
[18] The Applicant, 2246519 Ontario Inc. and the Applicant’s mother appealed this decision to the Court of Appeal. In reasons dated March 30th, 2016, the CPL was ordered to be removed from the Delhi property but the appeal was otherwise dismissed.
[19] Title in the cars was returned to the Respondent. However, as noted above, he was in bankruptcy at certain time periods prior to 2015. As a result, the Trustee in Bankruptcy moved to have the cars preserved for the benefit of the creditors, as the Respondent had failed to disclose his ownership of those cars while he was an undischarged bankrupt. The Respondent transferred these cars to Mr. Braidmore, and more specifically a company named Straightforward Auto Sales, approximately a week before the motion before Pattillo J. was heard. Pattillo J. found that the cars had been disposed of by the Respondent after he had received Gray J.’s decision and was aware that the trustee in bankruptcy was claiming an interest in the cars. As a result, Pattillo J. made a number of other orders for the preservation of the Respondent’s assets. Ultimately, this decision was upheld by the Court of Appeal (2015 ONCA 787).
[20] I addressed the ownership of the cars in my decision on the matrimonial action. I determined that, given the conclusions of Gray J., the cars were part of the Respondent’s Net Family Property at the time of separation and that their value was to be equalized.
[21] In 2016, Price J. began to case-manage the matrimonial action. At the time that he took over management of the case, the Respondent had failed to provide either his Answer or his Financial Statement in a timely manner. He was ordered to do so by Miller J. on July 23rd, 2015. The Respondent did not deliver his Answer and Financial Statement until July 18th, 2016. Price J. was considering issues of contempt when he was first seized of the matter.
[22] There are a number of decisions of Price J. that set out the history of this matter (see 2016 ONSC 6863, 2017 ONSC 6034 and 2018 ONSC 5579). I do not intend to review these decisions in detail. However, there are some points from those decisions that are relevant for the issues that I have to determine in this case.
[23] There are a number of unreported Orders and endorsements in this time period. There was also a consent production order that had been issued on July 7th, 2016. This Order concerned, inter alia, the purchase of a property at 1360 Neils Avenue (“the Neils Avenue Property”). The Applicant asserts that the Neils Avenue Property was purchased by the Respondent using funds from the matrimonial home. As a result, the Applicant asserts that this property was beneficially owned by the Respondent and was used to hide monies that he had during their marriage. She also asserted that the cars that were transferred by the Respondent to Mr. Braidmore’s company after the Order of Gray J. were beneficially owned by the Respondent.
[24] The Respondent and Ms. Wilson assert that the Neils Avenue property was owned by Ms. Wilson for her other son, Gregory Wilson. They also assert that the money from the Niels Avenue property was used to purchase the Smithville Property. The Applicant, on the other hand, alleges that the Smithville property is held in trust for the Respondent by Ms. Wilson, as Ms. Wilson had no money to purchase either the Niels Avenue property or the Smithville property.
[25] Flowing from the Applicant’s claims in respect of property, the Applicant requested the opportunity to examine Ms. Wilson and Mr. Braidmore as part of seeking a preservation Order under Rule 12 of the Family Law Rules. Price J. duly granted the Applicant the right to examine both Ms. Wilson and Mr. Braidmore at a hearing on October 18th, 2016. The date for the examinations was set for October 31st, 2016, and Mr. Robson agreed to accept service of both conduct money and the notice of examination for Ms. Wilson.
[26] The first reported decision, 2016 ONSC 6863, flowed from an appearance on October 26th, 2016. It chronicles the history of Price J. attempting to get the Respondent to comply with his previous Orders, which included providing a business valuation. It also sets out Mr. Robson’s position, on behalf of Ms. Wilson, that she would not attend the examination on October 31st, 2016 because there had been a procedural defect in the serving of the notice of examination.
[27] Ultimately, Price J. determined that the examinations would proceed. He also granted a preservation order over a series of assets that bound the Respondent and Mr. Braidmore to preserve these assets. He also directed the examination of Ms. Wilson to take place on October 31st, 2016. The preservation order led to the seizure of a couple of the exotic cars in the Respondent’s possession.
[28] Ms. Wilson was examined for an hour. Her counsel at the examination was Mr. Robson, who was also representing the Respondent and Mr. Braidmore. Mr. Braidmore elected to obtain different counsel as a result of his concerns about some of the potential conflicts of interest. These conflicts were identified for Ms. Wilson at the start of her examination. However, she elected to continue with Mr. Robson as her counsel.
[29] Ms. Wilson also provided an Affidavit in respect of her financial affairs. As I will discuss below, she had also been ordered to provide a number of additional documents, especially in respect of the Niels Avenue property. She failed to produce any of these documents.
[30] Ultimately, in reasons dated October 10th, 2017 (2017 ONSC 6034), Price J. found the Respondent in contempt of Court for, inter alia, failing to disclose documents and otherwise comply with Court directions. The Respondent appealed this decision.
[31] The appeal was quashed by the Court of Appeal (2018 ONCA 728) and, in its reasons, the Court of Appeal observed that the Respondent “has made a procedural morass out of this case. The record of non-compliance with customary practice and the rules is so egregious that there is no explanation that the Appellant or Mr. Robson could provide that would excuse it.” Suffice it to say that the situation has not improved in the last few years.
[32] The matter proceeded to a sentencing hearing before Price J. The reasons for sentence were delivered on September 21st, 2018 (2018 ONSC 5579). The sentence that was imposed was that the Respondent was not permitted to either provide evidence or otherwise participate in the undefended trial. He was also required to pay a $10,000.00 fine. This decision was appealed to the Court of Appeal, and an extension of time to appeal was granted by Miller J.A. of the Court of Appeal (see 2019 CanLII 1036), but only until February 7th, 2019.
[33] On March 6th, 2019, the Notice of Appeal for the sentencing decision remained unfiled. A further motion for an extension of time to file the appeal was brought before Nordheimer J.A. A further extension was granted on terms. The terms included a requirement that the Respondent pay both the fine and the costs awards that had been made against him. Failing these payments, the Registrar of the Court of Appeal was directed to dismiss the Respondent’s appeal.
[34] The Respondent appealed Nordheimer J.A.’s decision to a panel of the Court of Appeal. That panel dismissed the appeal (2019 ONCA 532). The Respondent did not comply with the conditions set out in Nordheimer J.A.’s decision and was unsuccessful in having it varied. As a result, in my reasons on the undefended trial (see 2021 ONSC 3547 at para. 24), I concluded that the Registrar would have dismissed the Respondent’s appeal and that both the contempt finding and the sentence had been upheld.
[35] In the meantime, in 2019, Daley R.S.J. (as he then was) replaced Price J. as the case management judge. Daley R.S.J. convened a case conference on April 25th, 2019 with a number of relevant parties, including the bailiff, Mr. Braidmore, and the Applicant and Respondent and their respective clients. Immediately after the conclusion of that motion, Mr. Robson, counsel for the Respondent, wrote to Daley R.S.J. and advised him that he believed that Daley R.S.J. was biased. No proper motion was brought on this issue. Nevertheless, Daley R.S.J. dismissed the allegations as being meritless (2019 ONSC 3584). He also reminded the parties of the more stringent test for bias in the case management context.
[36] In November of 2019, Daley R.S.J. invited the parties to provide submissions on the issue of costs and the Respondent’s impecuniosity. These issues were not resolved before Daley R.S.J. elected supernumerary status in early 2020.
[37] In March of 2020, I was appointed as the case-management judge by Daley R.S.J. I sought input from the parties on a number of issues in an endorsement issued in May of 2020. I received and considered submissions. Ultimately, I provided directions to the parties in August of 2020. Those directions included the following points that are relevant to the issues that arise on this motion:
a) I determined that the Respondent’s claim of impecuniosity as a defence to the payment of costs awards could not succeed as there was no evidentiary record to support it and, in any event, Price J. had already decided against the Respondent on this point.
b) I determined that the parties could make submissions on the issue of the marriage contract, even though Price J.’s November 3rd, 2016 decision (2016 ONSC 6863) appeared to have found it to be invalid.
c) I determined that the undefended trial and the marriage contract issue would have to proceed first.
[38] I will now turn to address the events between 2021 and 2023.
c) The Litigation Between 2021 and 2023
[39] In the meantime, in early 2021, I received correspondence from Mr. Robson advising that there was an ongoing law society complaint involving himself, Mr. Siddiqui and the Applicant. Mr. Robson asked that I suspend the ongoing proceedings until the law society matter was dealt with. I declined that request.
[40] Detailed materials were provided by the Applicant in support of her position on the matrimonial action. In view of the significance of the issues in the matrimonial action, I directed that an oral hearing be conducted so that I could hear viva voce evidence from the Applicant. That evidence was heard on March 31st, 2021.
[41] I issued a decision on the undefended trial on May 19th, 2021 (2021 ONSC 3547). In that decision, I found that the Applicant had been physically abused during the course of her marriage to the Respondent. I also found that she was entitled to an equalization payment in excess of $1.2 million, retroactive spousal support of approximately $300,000 and ongoing support of $5,000 per month. I understand that none of these amounts have been paid. As a result, the Respondent owes the Applicant in excess of $1,500,000.
[42] In addition, I addressed the Smithville Property. I directed that it could not be sold, encumbered, leased for more than a week at a time or otherwise encumbered without leave of the Court. I directed that this Order was to be registered against the property and could not be removed without a further Order from me. I presume that this has been done.
[43] Once I issued the Order, I issued a further decision (2021 ONSC 3708) that addressed the issue of the marriage contract, which I found was res judicata on the basis of the reasons of Price J. I also reconfirmed for the parties that the costs that the Respondent owed to the Applicant had to be paid.
[44] Finally, I identified all of the actions that were outstanding in this matter. I advised the parties that I would convene a case conference to review these outstanding matters. A case conference was duly held. I determined that the outstanding actions were:
a) CV 118/15- this is an action that was brought in Milton by the Respondent against a number of parties. It was referred to by Mr. Robson and Mr. Chhina (who was also agent for the Respondent at certain times) as the ‘seminal action’ in the course of argument. While it may be the seminal action that is left, there is also an argument that the matrimonial litigation itself is the “seminal action”.
b) CV 2021/16- this is an action that was brought in Milton by the Applicant to recover funds used to purchase particular assets that were allegedly owned by the Respondent and a corporate entity.
c) CV 985/17- this is an action that was brought by the Respondent seeking damages against the Applicant from an allegedly false criminal complaint that was lodged by the Applicant with the police.
d) CV-19-628418- this is an action commenced in Toronto by the Respondent against Mr. Braidmore and various other parties.
e) CV-161/17 is an action brought by the Respondent against the Applicant’s former law firm, Abrahams LLP, one of its partners, Mr. Siddiqui, and another of its lawyers, Mr. Khayyan. This action claims, inter alia, fraud on the part of the lawyers.
f) CV-17-0550-00 this action, incorrectly recorded in my May 26th, 2021 decision as CV-17-0050-00, is a Brampton action that was brought by the Applicant. It was brought against various defendants, including Mr. Robson, the Applicant and Mr. Watson, Mr. Braidmore’s counsel.
[45] As will be seen, some of these actions have already been resolved. Others will be resolved by these reasons.
[46] The Respondent challenged the decision in the undefended trial. Counsel argued that “fraud changes everything” and that the Applicant had engaged in fraud when she provided her evidence on the undefended trial. The Respondent moved to set the matrimonial decision aside under Rule 59.06.
[47] The Applicant sought to stay the Respondent’s entire proceeding under Rule 60 on the basis of the unpaid costs awards. Those awards were $153,368.98, and there was a related fine for contempt in the sum of $10,000. I dealt with that issue first, as success for the Applicant on that motion would have ended the litigation. I concluded that the Respondent should be provided with one final opportunity to pay the outstanding costs (2021 ONSC 7390) before a stay would be granted. The costs were ultimately paid to the Applicant’s counsel, and the fine was paid into Court. I dealt with this issue before dealing with the Respondent’s Rule 59.06 motion.
[48] I ultimately adopted a process for dealing with the Rule 59.06 motion that required submissions in writing. I chose this type of process as I was concerned that the Respondent’s motion might be an abuse of process. After hearing those decisions, I dismissed the Rule 59.06 motion on the basis that it was an abuse of process (2022 ONSC 4799).
[49] I should pause to note that, in January of 2022, Mr. Robson raised allegations of bias and incompetence on my part in a series of e-mails that he sent to my judicial assistant. I would note that, as part of those e-mails, he made assertions in respect of the rights of Ms. Wilson.
[50] On January 10th, 2022, Ricchetti R.S.J. provided Mr. Robson with a response to those allegations, indicating that I would not be responding to them in the absence of a formal recusal motion. I have made the same observation about recusal to the Respondent’s counsel on more than one occasion. I am prepared to consider an allegation of bias, but only on a properly constituted record. A bald allegation in Court or in an e-mail or letter, without more, does not require the Court to address it.
[51] As I have mentioned above, at the same time that these matters were proceeding before me, the Applicant, the Respondent, Mr. Siddiqui and Mr. Robson were embroiled in professional misconduct proceedings brought against Mr. Robson at the LSO.
[52] As a result, the Respondent also commenced an action against the LSO in Toronto. I concluded that this action was part of the issues that I was case-managing and transferred it from Toronto to Brampton. The LSO then brought a motion to have this action dismissed. That motion was resolved on the basis of a dismissal without costs in January of 2023.
[53] In the meantime, I identified that one of the outstanding issues was the fact that Associated Bailiffs had possession of two cars that had originally been owned by the Respondent. Given the fact that the Applicant had a significant judgment against the Respondent, it appeared reasonable to address this issue separately, and before dealing with anything else. There were two sub-issues. First, selling the cars. This was addressed through a court supervised process, and the monies were paid into Court. Second, whether (and in what amount) the bailiff should be compensated for storing the cars for a period of approximately five years.
[54] Given the issues of compensation for the bailiff and the ownership of the cars, I set out a process to address the funds that had been generated from the sale of the cars. The issue was addressed by way of Affidavits. I also scheduled a half-day argument for the matter to permit cross-examination if anyone wished to conduct it. That hearing was held on September 19th, 2022 and I issued a decision on December 1st, 2022 in which I found that the bailiff was entitled to compensation for storing the cars, but that there should be a deduction because of damage that reduced the value of one of the cars. I also dismissed the Applicant’s arguments that I had not determined the issue of her Rule 60 motion, as I had determined that issue in a previous decision.
[55] At the next case conference on December 16th, 2022, the Applicant asked me to reconsider the decision in respect of the bailiff pursuant to Rule 59.06. After some discussion over a number of conferences, I provided directions for the Applicant and the Bailiff to provide factums and a motion record to resolve that issue. These reasons will set out my resolution of that issue. I also started the parties, including new counsel for Ms. Wilson (Ms. Lewis) into the next steps in this case, which were to consider what was left to be decided by either myself or at a trial.
[56] In the meantime, a number of proceedings had been commenced by the Respondent in the Court of Appeal. On May 27th, 2022, the Court of Appeal upheld my decision on the marriage contract (2022 ONCA 421). On December 7th, 2022, the Court of Appeal denied the Respondent an extension to perfect his appeal of my decision on the undefended trial (2022 ONCA 858).
[57] On February 2nd, 2023, the Court of Appeal issued further reasons in respect of all of the issues that I had addressed to that point. The Court of Appeal’s decision (2023 ONCA 74) determined that the Respondent’s appeal of the undefended trial decision was an abuse of process. As a result, my determinations in the matrimonial action were final determinations. I now turn to what has happened since that decision was issued.
d) The Litigation History Giving Rise to These Motions
[58] After the Court of Appeal’s reasons were released, I re-convened a case management hearing. The purpose of that hearing was to canvass the outstanding issues in this case and develop a process for resolving those issues. The first step was to confirm the outstanding actions, as set out in paragraph 44. That was done.
[59] Second, there were some of these actions that could be resolved, as follows:
a) CV-17-0550. This is an action brought by the Applicants against various defendants, including some of the counsel involved in this case. After I advised the Applicant and Mr. Scocco that the Applicant’s claims against the lawyers would have to be addressed before anything else was addressed, the Applicant duly consented to a dismissal of that action without costs. She did not resile from the merits of this action.
b) CV-985/17- the action brought by the Respondent against the Applicant for an allegedly false criminal complaint that was lodged by the Applicant. This action was dismissed with costs. The Respondent had consented to a dismissal without costs but I determined that costs should be paid.
[60] Having reduced the outstanding actions, it was then necessary to determine whether the findings in the matrimonial litigation applied to any of the remaining actions and, if so, what effect the previous decisions had on them. In addition, there was the question of whether Ms. Wilson’s rights (either through purchased actions or in her own person) were affected by any of the previous findings. These two questions are the main questions before me at this point.
[61] As part of this discussion, I directed that these motions would proceed under Rule 21. The reason for that decision is that the matrimonial action has resolved a number of factual issues, and those factual findings clearly bound the Respondent. It would be an abuse of process to permit the Respondent to relitigate the settled facts of the matrimonial case.
[62] In making this finding, I was very cognizant of the Supreme Court’s decision in Toronto (City) v. C.U.P.E. Local 79 2003 SCC 63, [2003] 3 S.C.R. 77. I have considered and applied this decision in my previous rulings on this case. Particularly given the Court of Appeal’s ruling in February of 2023, it seemed to me that these issues needed to be addressed at the outset, and before parties had spent considerable time and resources in cross-examinations or other litigation steps.
[63] Having made this observation, the issue then became whether, as a question of law, the findings in the matrimonial case were dispositive of other parts of the case relating to other parties. It seemed to me that resolving these issues as a question of law was the most efficient way to proceed and I set out the procedure to be followed in my April 4th, 2023 endorsement (2023 ONSC 2125). I now turn to the outstanding issues in this case.
Issues
[64] The issues to be addressed in these reasons are as follows:
a) Should my decision in respect of the bailiff issue be reconsidered and changed?
b) Given the decision in the matrimonial litigation, what issues remain to be decided from the Respondent’s other claims against the Applicant?
c) Given the decision in the matrimonial litigation, what rights does Ms. Wilson have as a result of her purchase of the Respondent’s claims in particular actions? Do the decisions in the matrimonial litigation bind Ms. Wilson more generally?
d) Should the action against Abrahams LLP and Mr. Siddiqui be allowed to continue?
e) Do I have the jurisdiction to enforce the costs orders of the Court of Appeal?
[65] I will deal with each issue in turn.
Issue #1- Should the Decision in Respect of the Bailiff be Changed?
a) Specific Facts
[66] As noted above, the Respondent owned, and I believe still owns, exotic cars. In the fall of 2016, there had been considerable non-compliance on the part of the Respondent. That resulted in Price J. issuing a preservation order (2016 ONSC 6863). As part of that preservation order, the assets listed in the Order were to forthwith be delivered up to a bailiff named by the Applicant and stored in a storage facility. The list of assets included eighteen cars and some bikes.
[67] Mr. Siracusa of Associated Bailiffs was subsequently contacted by the Applicant. There was a live issue between the parties as to whether there was an actual agreement between them for Associated Bailiffs to remove the cars from the Smithville property. In any event, however, Mr. Siracusa attended at the property where the cars were supposed to be with several tow trucks. Mr. Siracusa removed the one car that was found on the property, a Ferrari. A couple of weeks later, he found a second car, a Dodge Charger and removed that as well.
[68] After I released my reasons in the undefended family law trial, it was clear that the Respondent would owe the Applicant more than $1 million. A further hearing was held on June 8th, 2021 and I released reasons (2021 ONSC 4311) that set out my method for disposing of the cars. The Ferrari was sold for $193,625.00 inclusive of HST while the Charger did not have much in the way of value and was disposed of. The monies from these sales have been paid into Court.
[69] Once that was done, the remaining question in respect of these cars was what compensation, if any, should be provided to Associated Bailiffs for the towing and storing of the cars. Associated Bailiffs provided an invoice, and any party that wished to challenge the invoice was free to do so. The Applicant challenged the invoice on the basis that there was no agreement with Associated Bailiffs and on the basis that Associated Bailiffs had not properly cared for the cars.
[70] Therefore, I established a process in which the Applicant provided an Affidavit, Mr. Siracusa of Associated Bailiffs provided an Affidavit, and the Applicant provided a reply Affidavit. I then scheduled a hearing on September 19th, 2022 and invited parties to cross-examine each other on their Affidavits. Neither witness was cross-examined. The parties then made submissions on the issues.
[71] I released a decision on December 2nd, 2022 in which I found that the Bailiff was entitled to compensation, even if there was no contract between the parties, on the basis of the principle of quantum meruit. I also found that the Ferrari had been improperly stored, and that the monies paid to the Bailiff should be reduced by $10,000 (or just over 25% of the invoice) to take account of that fact.
[72] In the case conference on December 16th, 2022, the Applicant advised that she wanted this decision reconsidered as I had made significant errors in it. The transcript from the hearing that day makes it clear that the reconsideration was based, in part on a claim, as counsel put it, “that, in your reasons some of the observations you made seemed to conflict with what was put in front of you…”. I advised counsel that I did not see this as a basis for a reconsideration, and that a formal motion on notice to Associated Bailiffs was necessary if I was going to reconsider the issue.
[73] I released my costs decision in this matter on January 6th, 2023 (2023 ONSC 169). The Applicant sought $12,000.00 in costs against the bailiff. The bailiff made no submissions on costs. I found that, since success was divided on the issues, that there should be no order as to costs.
[74] Ultimately, the Applicant brought a formal motion for me to reconsider the issues I had disposed of in the bailiff decision and I directed a timetable for the serving and filing of responding materials. Although those matters were dealt with separately, the factual and legal issues have sufficient connection to the remaining matters that I have determined that it was more efficient to address them along with all of the other issues as part of one decision.
b) The Positions of the Parties
[75] The Applicant seeks to have both my order and my reasons changed. She has provided a detailed list of the paragraphs in my reasons that should be changed to reflect her view of the evidence. In terms of the changes to the Orders, instead of my decision to provide the bailiff with some compensation for storing the cars for half a decade, the Applicant seeks to have me find that the bailiff should not be entitled to any compensation for the storage of the vehicles and that she should be entitled to recover $53,000 from the bailiff for the improper storage of the Ferrari.
[76] The bailiff asserts that the Applicant’s application has been improperly brought under Rule 59.06 because it is an attempt to re-litigate the issues that I have already decided. As a result, the bailiff argues that the Applicant’s motion should be dismissed.
c) The Law and Analysis
[77] I start with the relevant Rule. Rule 59.06 states:
59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding. R.R.O. 1990, Reg. 194, r. 59.06 (1).
Setting Aside or Varying
(2) A party who seeks to,
(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;
(b) suspend the operation of an order;
(c) carry an order into operation; or
(d) obtain other relief than that originally awarded,
may make a motion in the proceeding for the relief claimed.
[78] This is a rule that sets out a very narrow basis for reviewing a decision. In Bowen v. J.C. Clarke Ltd., 2023 ONCA 181, leave to appeal refused, 2023 CanLII 92319 (S.C.C.), the Court of Appeal recently considered the scope of Rule 59.06 in the context of a request from the Appellant to change the Court of Appeal’s disposition of trial costs. The Court rejected this request, stating:
[9] Rule 59.06(1) is not applicable in the circumstances of this motion. The motion does not raise an issue of an accidental slip or omission or seek an amendment on a particular on which the court did not adjudicate: Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 512, at paras. 7, 9. In their Notice of Appeal and their appeal factum, the appellants sought trial costs. This court adjudicated on trial costs. There was neither an accidental slip or omission nor a failure to adjudicate.
[10] With respect to rule 59.06(2), the appellants rely on subrule (d), which permits a party to bring a motion in a proceeding to “obtain other relief than that originally awarded” (emphasis added). Rule 59.06 cannot be read as being so broad as to apply to any request by a moving party for a different order than that made by the court. If that were sufficient to invoke rule 59.06(2)(d), finality of judgments would be illusory. The appellants are not seeking relief other than that originally awarded. The nature of the relief they seek is the same as what the court ordered – costs. What the appellants challenge is to whom the costs are payable. This is not relief other than that originally awarded. Rather, the appellants are seeking relief that this court considered and declined to grant: Render, at para. 8.
[79] In other words, the Rule is limited to “slips” rather than allowing the Court the power to reconsider decisions more broadly. This limitation is founded in the important public policy consideration that decisions of the Court must be final and that there should be certainty in the Court’s decisions once they are made.
[80] In Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc., 2013 ONSC 1502, Perrell J. explained the purpose of Rule 59.06 as follows:
[31] Generally speaking the court’s inherent and statutory jurisdiction to amend an order or judgment is limited to: (1) cases of fraud; (2) where there has been a slip in drawing up the order; and (3) where there has been an error in the order expressing the manifest intention of the court from its reasons for decision: Paper Machinery Limited v. J.O. Ross Engineering Corp., 1934 CanLII 1 (SCC), [1934] S.C.R. 186; Re Wright, [1949] O.J. No. 3 (H.C.J.); Millard v. North George Capital Management Ltd., [1999] O.J. No. 3957 (S.C.J.). The rule is only operative in exceptional circumstances given the public interest in the principle of finality to the litigation process: Shaw Satellite G.P. v. Pieckenhagen, 2011 ONSC 5968 (S.C.J.) at para. 20.
[81] I accept this interpretation. Indeed, this is not the first time that I have dealt with Rule 59.06 in respect of these parties, and I adopted the same interpretation of the Rule the last time I was required to consider it. In my reasons dismissing a Rule 59.06 motion brought by the Respondent, I stated:
[53] Rule 59 is to be used sparingly and the onus is on the moving party to show that an exception should be made to the fundamental rule that final judgements are final. Tsaoussis (Litigation Guardian of) v. Baetz (1998), 1998 CanLII 5454 (1998) 41 O.R. (3d) 257. The Court should proceed cautiously when considering whether to revisit its final decisions. Rule 59.06 is not an invitation to re-argue cases endlessly. Berge v College of Audiologists and Speech Language Pathologists of Ontario, 2019 ONSC 3351 at para. 34.
[82] This brings me to the facts of this case. The Applicant argues that I misapprehended both the evidence and her submissions. That may be. However, it is clear that the Applicant wishes to have me reconsider a decision that I have already made, and not correct a “slip” or “oversight”. She wants me to reach a different decision on whether the bailiff is entitled to compensation, and on the quantum of the damages to the Ferrari that the bailiff should be responsible for. This is not an issue that I failed to consider. It is an issue that I have ruled on, and any errors I may have made are beyond the ambit of Rule 59.06.
[83] Given that conclusion, it would be inappropriate for me to comment further on the Applicant’s submissions on the merits. In my view, it is the decision I made in December of 2022 that should be subject to appellate scrutiny and not any additional comments, findings or other observations I might make now. In an appeal, the judge who made the initial findings does not get a chance to respond to the Appellant’s factum. I should not create that opportunity for myself out of this motion, and I decline to do so.
d) Process and Bias Issues
[84] There are a number of troubling statements in the materials that the Applicant has filed in respect of this issue. Some of those statements are set out at paragraphs 4-7 of the Applicant’s reply factum on this motion, and read as follows:
At no point in both of the Responding Party’s [sic] facts did they provide any defence or explanation for the bailiff’s misconduct. This is proof that they clearly know that their client is guilty and that is why they use Justice LeMay’s unfounded attack on Ms. Fatahi as a reason for her motion to be dismissed.
These two facta of the Responding party is the exact reason for Ms. Fatahi making submissions on the record asking His Honour stop painting her with the same brush as Stewart Wilson and other respondents, since at some point it would be used against her just to muddy the water and drag the proceeding.
In the last 3 years that this matter has been case managed by Justice LeMay Ms. Fatahi made submissions on the record begging His Honour to stop allowing the respondents to continue abusing the process with the court’s blessing since every single issue that was re-raised by the respondents had already been ruled on by Milton Court, Superior Court, Divisional Court, Court of Appeal, and Toronto Bankruptcy Court.
The only reason for this bailiff issue to be dragged for this long is because the court’s time is being consumed by His Honour’s decision to use his power as a case management judge to ignore every other judge’s ruling in the family law case by allowing Stewart Wilson, Elizabeth Wilson and the other respondents to redo the same issues which were res judicata. ON the record, Ms. Fatahi has begged His Honour to put an end to all of this abuse which is costing her more money, time wasted which are deadly to her health but each time His Honour’s reason for allowing the respondent to continue the abuse of process is that the court needs to do its “due diligence”. This response from the court makes it sound as though every other judge, including the panels from the Court of Appeal did not do their due diligence.
[85] There are other statements of this nature that have been made in correspondence, pleadings and on the record. I do not intend to address most of those statements, as it is not necessary for me to do so in order to decide the issues in this case. However, there are three general issues that I will briefly discuss that are relevant to the case as a whole, and flow from the Applicant’s submissions, as follows:
a) The cost and delay in the process I adopted to resolve the bailiff issue.
b) The Applicant’s claim that I have unfairly criticized her for re-litigating issues that have already been determined.
c) The Applicant’s claim that I am permitting both the Respondent and his counsel and Ms. Wilson and her counsel to engage in abuses of process. From this claim, I am also inferring a claim of bias.
[86] I will deal with each issue in turn.
The Process
[87] The Applicant’s concern with the process that I adopted in order to resolve this issue was that it was more expensive than what she proposed. It must be remembered as to what process she proposed. At the hearing on December 16th, 2022, in the absence of any representative for the bailiff, her representative suggested that I simply re-consider my decision (see paragraph 72).
[88] The problem with the Applicant’s proposed process is that it would have resulted in me considering whether to change my decision (and perhaps changing it) with no notice to the bailiff. The bailiff is entitled to the benefit of the decision that I made and is entitled to make arguments on why that decision should be maintained, absent an appeal.
[89] More generally, the Applicant has raised significant concerns about the process that has been adopted in this case. As I understand them, those concerns, in a general way, are that I have improperly allowed the Respondent and his mother to advance issues that are an abuse of process and, in doing so, have significantly prejudiced the Applicant. I will address those issues as they arise both more generally and in my discussion of abuse of process and bias below. As a general observation, however, I will note that the Court has an obligation to hear from both sides before deciding whether an issue was an abuse of process. That is all that has been done in this case, and that is why the Applicant was required to bring a formal motion to have the decision in respect of the bailiff changed.
Relitigating Issues in The Case
[90] The Applicant specifically asserts that I have improperly and unfairly accused her of relitigating issues in this case. She asserts, further, that she has not done this at any point or in any way and refers to my observations in this regard as “demonstrably false”. She asks me to remove any references I have made to her re-litigating issues from my previous decisions as it works an unfairness on her.
[91] There are three problems with this assertion. First, in the December 2nd, 2022 decision in which I originally decided the bailiff issue, I also addressed the Applicant’s re-litigation of her Rule 60 motion. In that respect, I stated as follows:
[75] In the course of the hearing on September 19th, 2021, after correctly identifying that I had not released a couple of previous orders, Mr. Scocco also stated that I had not dealt with Ms. Fatahi-Ghandehari’s issues on the Rule 60 motion. This submission is not supportable.
[76] Ms. Fatahi-Ghandehari’s Rule 60.12 motion seeking to stay Mr. Wilson’s actions against her on the basis that he is a vexatious litigant and that he has failed to pay the costs orders that have been made throughout this litigation were before the Court in 2021. On November 12th, 2021, I released a detailed decision outlining that the request for a stay was denied as long as Mr. Wilson paid the outstanding costs awards within fourteen (14) calendar days. That money was duly paid by Mr. Wilson, and his outstanding fine for contempt was also paid.
[77] In the course of the hearing, when Mr. Scocco advanced his claim that I had not dealt with this issue, I expressed some concern with Mr. Scocco’s claim. Having completed the day’s business (which was the issue involving the bailiff) and satisfied myself that I had dealt with the Rule 60.12 issues, I adjourned Court. That afternoon, my judicial assistant received an e-mail entitled “Immediate Attention Required”. I would start by noting that, when counsel is addressing a judicial assistant they are addressing the Court. In light of that fact, stating that their matter requires immediate attention in a peremptory way is troubling. This is particularly true when the Court has, earlier that same day, declined to hear them further on the point.
[78] Mr. Scocco’s letter goes on to explain, in detail, why my dismissal of the stay motion on November 12th, 2021 does not amount to a determination of the Rule 60.12 matter. Mr. Scocco’s letter goes on to reference various parts of various transcripts as well as case-law and other issues. In Mr. Scocco’s view, I had not fully decided the Rule 60.12 motion. I disagree with these submissions.
[79] Mr. Scocco followed up by providing another copy of his September 19th, 2022 letter. In his e-mail dated October 11th, 2022, Mr. Scocco stated “I am instructed to ensure that the enclosed letter has been put before Justice LeMay. Kindly confirm that His Honour has received this letter.” Given the directives that I have provided the parties on out-of-court communications (which will be discussed below), this further communication was inapt, to put it mildly.
[80] One of the significant problems with this case is the fact that Mr. Wilson has been constantly re-litigating issues. Now, Ms. Fatahi-Ghandehari seeks to re-litigate the issue of the Rule 60.12 motion. In my view, the constant re-litigation of issues in this case is not helpful and should not be encouraged.
[92] From both the submissions on the record in September of 2021 and the subsequent correspondence, it certainly appeared to me that the Applicant was seeking to re-open the Rule 60 motion in order to obtain a different result. I really cannot call this anything other than attempting to re-litigate an issue that has already been decided.
[93] This brings me to the second problem with the Applicant’s submission that she has not re-litigated issues. It flows from the correspondence that Mr. Scocco sent to the Court on October 31st, 2023. That correspondence states:
While Ms. Fatahi is aware of Your Honour’s requirement that no party contact Your Honour or Your Honour’s judicial secretary, this communication cannot wait another month until December 11, 2023.
Further, Ms. Fatahi disagrees with Your Honour’s ban on communications as it frustrates the purpose of Rule 77 of the Rules of Civil Procedure. In particular, Ms. Fatahi grounds this communication to Your Honour pursuant to Rule 77.01(2) which states:
77.01(2) This Rule shall be construed in accordance with the following principles:
- Despite the application of case management under this Rule to a proceeding, the greater share of the responsibility for managing the proceeding and moving it expeditiously to a trial, hearing or other resolution remains with the parties. …
As a reminder, the ban on the parties communicating with the court directly was a result of Paul Robson’s constant emails harassing the court and court staff. This ban has prejudiced Ms. Fatahi’s ability to advance her claim, and manage the proceeding in accordance with Rule 77.01(2).
[94] I acknowledge that this correspondence was sent after I made my comments about the Applicant re-litigating issues. However, my ban on the parties contacting me has been in place since 2020 and, in the December 2022 hearing, I warned the parties that further breaches of that ban would attract not only a finding of contempt but, given all of the previous breaches, could very well attract a period of incarceration. And yet, the Applicant is seeking to re-litigate that very issue and is doing so by breaching my Orders. I would add that, while the conduct of Mr. Robson in terms of improperly writing to me has been far worse, the Applicant has sought to re-litigate my order on this point and she and her counsel have written to me outside of Court on more than one occasion in breach of my Orders.
[95] The third problem with the Applicant’s assertion that I have improperly and unfairly accused her of re-litigating issues in this case is that her entire submissions on the bailiff issue are a re-litigation of an issue that I had already decided. As I have said above, I may be wrong on the bailiff issue. I may also be wrong on the Rule 60 issue. However, I am not permitted to review my own decisions. There is another Court charged with that responsibility. The Applicant’s insistence on proceeding with the re-litigation of both the bailiff and Rule 60 issues unnecessarily consumed Court resources. However, I would also add the same observation that I made in the July 27th, 2023 hearing, which is that the Applicant at least has seemed to be more amenable to addressing my concerns about re-litigation than the Respondent.
[96] I also reject the Applicant’s observation, as set out in paragraph 13 of her reply factum that, if I had really believed that she was re-litigating issues I could have sent her on to the Court of Appeal on this issue. I suggested that to her counsel and I required a formal motion record if she wanted to proceed in front of me. I made that suggestion very firmly in the July 27th, 2023 case management hearing. However, I cannot simply direct a party that they cannot do something without hearing from them first. Audi alterarm partem is a foundational principle of our judicial system. Proceeding with this reconsideration was the Applicant’s decision, and not mine. Once raised, however, I was duty bound to hear and decide the issue.
Abuse of Process and Bias
[97] The third argument is that I am permitting the Respondent and Ms. Wilson to engage in abuses of process. This can be viewed as a claim that I am biased, or that there is a reasonable apprehension of bias on my part. As I stated on several previous occasions in these reasons, the Court has an obligation to hear all sides of an issue. Put differently, when an allegation of abuse of process is made, the Court cannot simply accept it as true. The Court must hear argument from both parties, including the party that is allegedly engaging in the abuse of process, before the Court decides on the question.
[98] I will very briefly make three additional observations in respect of this issue, as follows:
a) The Respondent has raised allegations of bias on a number of occasions, both about me and about Daley R.S.J. I have advised the Respondent on numerous occasions that I will not consider or address allegations of bias without a formal record and motion. The same principle must apply to the Applicant, and there is no motion for a finding of bias on my part.
b) I have pointed out to the parties on numerous occasions in the past that the standard for a reasonable apprehension of bias is quite high, and is even higher for a case-management judge. Cosentino v. Dominaco Developments Inc., 2018 ONSC 4092, at paras 48-51.
c) Having reflected on the high standard for bias in this case, I see no basis for concluding that I have a reasonable bias. In that respect, I would observe that the Applicant has been mostly successful on the decisions that I have rendered. However, these reasons have expanded on a number of the procedural decisions that I have made in order to provide the parties with transparency as to both what I was doing and why it was being done.
[99] For all these reasons, the Applicant’s motion requesting me to re-consider the bailiff issues is dismissed. From this conclusion, it flows that my costs determination in the Bailiff matter (of no costs to either side) remains unchanged. There will be an opportunity to make written submissions on costs for this motion.
Issue #2- The Scope of the Respondent’s Remaining Claims Against the Applicant
a) The Respondent’s Other Claims
[100] My analysis of this issue starts by delineating the other claims that the Respondent still has ongoing in this case. Those claims are encompassed in Court File No. 118/15 and in the action against Abrahams LLP. I will deal with the Abrahams action separately.
[101] The Respondent is the Plaintiff in Court File No. 118/15. The Defendants are the Applicant, her mother and 2246519 Ontario Inc. The shares in the numbered company were originally owned by the Applicant’s mother. Previous court decisions disclose that, in 2010, approximately a year prior to his assignment into bankruptcy, the Respondent signed a trust agreement in respect of the cars used to run his business. The import of that agreement was that the numbered company held the cars in trust for the Respondent. This fact has been accepted by the Courts.
[102] In his claim, the Respondent alleges that there was “theft, fraudulent misrepresentation, breach of trust, breach of fiduciary duty and breach of constructive trust, knowing receipt of trust property and unjust enrichment.”
[103] The Respondent’s losses are described in paragraph 3 of the Statement of Claim, as follows:
This action is in respect of a fraudulent scheme perpetrated by Ms. Fatahi-Fatahi-Ghandehari [sic], Ms. Gahinali and Ms. Tahvildari and consists of, inter alia, Ms. Ghandehari and Ms. Yaghanaili using their positions of authority and trust and/or spouse so as to misappropriate funds and from 2246519 and fraudulently transfer and deprive the Plaintiff of his interest the [sic] matrimonial home. At the time of pleading, the Plaintiffs ongoing investigation has determined that he and 2246519 have suffered resulting loss totaling at least $1.5 million which amount is comprised of existing vehicles of approximately $850,000, 3 misappropriated land [sic] sold vehicles since in October 2014 totally approximately $205,000, miscellaneous other assets consisting of office equipment and supplies and tools totally approximately $100,000 in value, stole proceeds from the sale of at least $100,000 in unused gift certificates sold by 2246519 and as of yet unredeemed for the year 2015 and the Plaintiffs interest in the matrimonial home estimated at $275,000, for a total of $1,530,000.00.
[104] The Court has already disposed of the issues around the cars. There are then the other assets of the company. I will note that information on those assets would have been the subject of the production Orders that Price J. made in this case. If the Respondent truly had these assets, then he would have produced information about them in the matrimonial litigation.
[105] I am fortified in this conclusion by the submissions made by Mr. Robson to Gibson J. in October of 2015. In those submissions, Mr. Robson stated “the numbered company has not [sic] assets to my knowledge. That’s a correct statement. All of the assets of the company by the Order of Gray J. have been effectively transferred to Mr. Wilson.” As a result, the claim that there are assets in 2246519 Ontario Inc. that the Applicant has fraudulently obtained has also been resolved.
[106] With this factual background in mind, I now turn to the legal question that I must address, which is whether permitting the issues raised in the Respondent’s claim in Court File No. 118/15 would be an abuse of process or is otherwise barred by a related doctrine.
[107] In making this decision, I acknowledge that Ms. Wilson has purchased both the rights to the action and the shares in 2246519 Ontario Inc. I will deal with her rights in the next action. The rights she has, however, flow from what rights the Respondent would have in the action if he was still prosecuting it which is why I must address the scope of the Respondent’s rights first.
b) Abuse of Process and Related Doctrines
[108] One of the key legal issues in this case is the application of abuse of process and its related doctrines. The leading case on abuse of process is Toronto. In that decision, the Court explained the difference between abuse of process, issue estoppel and collateral attack. Issue estoppel is a branch of res judicata, the other being cause of action estoppel. In my view, issue estoppel would bar the Respondent from pursuing the action in 118/15.
[109] Issue estoppel can be successfully invoked when:
a) The issue is the same as the one decided in the prior decision;
b) The prior judicial decision must have been final; and
c) The parties to both proceeding must be the same, or their privies.
[110] These principles have also been discussed in detail in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R 460.
[111] In this case, the issue to be determined is the same. It is the question of who owned the cars, and of whether there was any fraudulent conduct on the part of the Applicant. Both of these issues have been determined already. Both Gray J. and I have determined that the Respondent was the beneficial owner of the cars, and these decisions have both been approved by the Court of Appeal, so they are clearly final. The issue of whether there was any other fraud has already been determined in the Applicant’s favour on more than one occasion.
[112] In that respect, my decision dismissing the Respondent’s motion under Rule 59.06 (2022 ONSC 4799) is dispositive. In that decision, at para. 11, I set out the allegations of fraud that the Respondent was advancing:
a) That the Applicant’s claims of receiving an inheritance are fraudulent.
b) That the Applicant was not just an assistant at the Respondent’s company prior to separation, but together with her mother was in complete control of the company.
c) That the Applicant defrauded the Respondent’s company of a million dollars more or less.
d) That the Applicant did not make any contributions to the purchase of the property located at 1360 Niels Avenue in Burlington.
e) That the Applicant’s claims that she was assaulted by the Respondent are lies.
[113] These arguments are, in my view, simply a restatement of the fraud allegations set out in the Respondent’s statement of claim. Those are reproduced at paragraph 103, above. In my reasons on the Rule 59.06 motion, I reviewed those allegations in detail and explained how it would be an abuse of process to permit the re-litigation of these issues, as they had already been decided by the decision in the matrimonial action.
[114] Given that I have already provided a final decision on the fraud related issues in respect of these parties, the doctrines of abuse of process and issue estoppel are both applicable in this case.
[115] This brings me to one of the arguments that was made by Mr. Robson at one point. When I was hearing submissions on the original procedure to be adopted in this matter, Mr. Robson asserted that there was a difference between fraud and fraudulent misrepresentation. The law does not support this assertion. In Rana et. al. v. Ramzan et. al., 2023 ONSC 5792, Daley J. noted (at para. 28) that:
[28] Although the plaintiffs assert two distinct causes of action namely under the intentional torts of fraud and deceit, the academic literature and jurisprudence after Hryniak demonstrates that deceit, fraud, and fraudulent misrepresentation are used interchangeably and that the constituent elements of these intentional torts are the same as set out in that decision:
[116] This passage supports the conclusion that there is no difference between the various causes of action that the Respondent has set out in his Statement of Claim in this action and the decisions this Court has already made. Given that conclusion, there is nothing left for the Respondent to litigate in Court File No. 118/15. I will address whether this finding binds Ms. Wilson in the next section.
c) Other Issues
[117] For completeness, I will address a couple of the other arguments that have been referred to by either the Respondent, Mr. Robson or Mr. Chhina in the course of both preparing for, and arguing, these motions. In doing so, I note the Applicant’s assertion that the Respondent should not be permitted to make any submissions. I am of the view, however, that these issues should be addressed on the merits.
[118] First, Mr. Robson argued that the Supreme Court of Canada’s decision in Anderson v. Anderson, 2023 SCC 13, 481 D.LR. (4th) 1 vitiates all of the decisions that have been made about the marriage contract by myself, Price J. and the Court of Appeal. This argument was supported by Ms. Wilson’s counsel, as the numbered company that was one of the Plaintiffs in this case had been purchased by Ms. Wilson. As a result, she was also entitled to make submissions on these issues, and I have considered them.
[119] There are three reasons why this argument fails. First, I see nothing in Anderson that would cause a change in the analysis of the matrimonial contract in this case. The Court in Anderson notes that the framework for domestic contracts is statute-specific (para. 33) and that the Courts are required to balance the values of contractual autonomy and certainty with concerns of fairness (para. 34). That exercise was done by Price J. in this case.
[120] Second, the Court of Appeal has upheld both Price J.’s and my findings in respect of the matrimonial contract. If the Respondent believes that decision is wrong, he had the ability to seek leave to appeal to the Supreme Court of Canada. I am bound by both my own findings and the Court of Appeal’s findings on the marriage contract.
[121] Finally, and most importantly, the Respondent’s attempt to raise Anderson as a basis for the Court to reconsider the decision on the marriage contract is an abuse of process. It is also a collateral attack (within the meaning ascribed to this term in the Toronto decision) on the decisions of both this Court and the Court of Appeal in respect of the marriage contract. This argument is rejected.
[122] I should also briefly address an argument that Mr. Robson made during the course of the March 2023 case conference. He advised me that he was of the view that the motions in respect of the Respondent’s claims against the Applicant should be brought as pleadings motions under Rule 25.11. Part of the reason for that assertion, I suspect, was that pleadings that are struck under Rule 25.11 are usually struck with leave to amend. Leave to amend a pleading should be denied only in the clearest of cases, and the motions judge must explain why leave is being denied. TSI International Group Inc v. Formosa, 2017 ONCA 261 and Tran v. University of Western Ontario, 2015 ONCA 295. Therefore, treating this as a pleadings motion might provide the Respondent or Ms. Wilson with the ability to amend the pleading.
[123] In this case, the question before me is whether, as a matter of law, the Respondent’s pleadings in this action were res judicata and/or an abuse of process as a result of this Court’s previous findings. That is a question of law more amenable to a Rule 21 motion and I have disposed of it in that manner.
[124] However, if I am wrong in that conclusion and I should have proceeded under Rule 25.11, I will briefly explain why this is one of the clearest of cases and why I would, therefore, deny leave to amend. The factual basis for this case has been extensively litigated and I have been shown no additional facts that might demonstrate that a different outcome would even be possible in this case if an amendment to the pleadings was permitted. In any event, permitting the Respondent to re-litigate these issues by changing the underlying facts in his pleading nearly ten years after the facts had originally arisen would be an abuse of process. I have explained my reasons for that conclusion in my decision on the matrimonial contract. They apply here as well.
[125] For the foregoing reasons, the Respondent has no claim remaining to be adjudicated in Court File No. 118/15.
Issue #3- Ms. Wilson’s Rights
a) Additional Facts
[126] Ms. Wilson’s rights in this case flow from two separate sources. First, there are the actions that she purchased from the Respondent’s Trustee in Bankruptcy. Those assets are as follows:
Parcel 1- Mr. Wilson’s claim against 2246519 Ontario Inc., Sara Fatahi-Ghandehari, Farzaneh Yaghinali and Sahel Tahvildari in the Ontario Superior Court of Justice, court file no: 118/15 (the “224 claim”) and all matters or claims ancillary thereto.
Parcel 2- Mr. Wilson’s interest in 2246519 Ontario Inc, believed to be 100% of the shares thereof (the “224 Shares”)
Parcel 3- Mr. Wilson’s interest in the following vehicles or proceeds thereof (the vehicles’ respective Vehicle Identificaton Numbers are included in the Agreement):
2001 Ferrari 360
2002 Ferrari Spider
2003 Lamborghini Murcielago
2004 Lamborghini Gallardo
2006 Aston Martin V8 Vantage
2008 Audi R8
2009 Nissan GT-R
Parcel 4- The trustee’s interest in the awards of costs against Mr. Wilson in court proceedings bas between Mr. Wilson and the Trustee in Court File Nos.: 32-1492614 and C60351 (the “Costs Awards”)
[127] I should note that there is a dispute between the Applicant and Ms. Wilson as to what these assets are. The key dispute is over whether the list of cars includes the Ferrari that was in the possession of the bailiff and that I have ordered to be sold.
[128] The Applicant has provided several pages of submissions on how Ms. Wilson’s position in terms of what she purchased from the Trustee has evolved. The Applicant views this evolution of what was in the Trustee’s order as a fraudulent attempt to obtain rights over the Ferrari that was the subject of the Bailiff’s order and to prevent the payment of that money out of Court.
[129] I am concerned by the evolution of Ms. Wilson’s position on what was in the Trustee’s Order. However, I am expressly not prepared to find that it was done fraudulently or maliciously for three reasons. First, and most important, the list is reproduced accurately in Ms. Wilson’s factum and the document is appended to her Affidavit, so that I can actually inspect what was included in the agreement. Second, there was no indication anywhere in Ms. Wilson’s submissions that she is making a claim over the funds that have already been paid into Court. Finally, the documentary record in this case is quite confusing, so errors at the beginning of counsel’s retainer would not be unexpected. In any event, however, it is not necessary for me to make any finding in this regard in order to dispose of the issues in this case.
[130] The second source of rights in this case is the fact that Ms. Wilson holds legal title to the Smithville Property. In the matrimonial action, it has already been found that the Respondent is the beneficial owner of that property. The question that I have to decide is whether Ms. Wilson retains the right to challenge that finding. That requires me to review Ms. Wilson’s role in this litigation to date.
[131] I start with the observation that, even before Ms. Wilson purchased the action, she was represented by Mr. Robson before Price J. She was also subject to production Orders from Price J., which she declined to comply with.
[132] On July 7th, 2016, the parties consented to an Order requiring the Respondent to, inter alia, produce the following:
a) Agreement of purchase and sale for 135 Niels Avenue, Burlington, ON, when it was purchased by Greg Wilson;
b) Summary and tracing of funds that were used to purchase 1350 Niels Avenue Burlington along with the trust ledger statement.
[133] There were further discussions about production. Ultimately, the Applicant brought a motion seeking to have Ms. Wilson and Mr. Braidmore attend an examination and produce documentation. Mr. Robson, counsel for the Respondent, represented both Ms. Wilson and Mr. Braidmore in that motion before Price J. Mr. Robson advised that the non-parties were not really opposed to the production or the attendance.
[134] Production was ordered on October 18th, 2016. That production included everything that was requested in the Notice of Examination. The Notice of Examination requested production of the following
a) Personal and business bank statements (December, 2014 to October 2016).
b) Personal and Business Filed Tax Returns with accompanying Notices of Assessment (2014-2015).
c) Personal and Business Paypal Statements (December 2014-October 2016).
d) Bill of sale for vehicles or assets purchased/transferred on March 4, 2015 from Exotic Car Tours 2246519 Ontario Inc.
e) Bill of sale for vehicles or assets sold/transferred after being acquired on March 4th, 2015.
f) Agreement of Purchase and Sale for the purchase of 1360 Niels Avenue (2009).
g) Lawyer’s reporting letter including enclosures for the sale of 1360 Niels Ave (2009).
h) Agreement of Purchase and Sale of 1360 Niels Ave (2016)
i) Lawyer’s reporting letter including enclosures for the sale of 1360 Niels Ave (2016).
j) Agreement of purchase or lease of the property at 9860 Hwy 20 Hamilton, ON L0R 2A0.
k) Documentation showing the down payment for the purchase of 1360 Niels Avenue in 2009 came from your Mutual Fund account.
l) Any trust agreement in which Elizabeth Wilson and Stewart Wilson are parties.
[135] In November of 2016, the Respondent provided an Affidavit. This Affidavit set out some assertions about Ms. Wilson’s financial circumstances but provided no evidence to support those assertions. The Affidavit, and the accompanying scheduled, includes the following information:
As of July 2016, I had approximately $473,121 in various investment accounts at the National Bank of Canada, namely a LIF, a RIF, a TFSA, a brokerage account and a small in trust account. Stewart will provide copies.
I retired in the year 2000 at the age of 56 and have been living from these assets since then.
Also, I loaned Stewart various amounts of money fist toward the purchase of his first house, then his first car and many cars since then from my investments and the sale of my house on Mill Rd. in Etobicoke in the late 90’s. These loans and repayments are outlined in a previous presentation to the Court.
No extra money was paid to reduce the mortgage at Neil’s Ave. The deposit $115,000 came from my accounts that were started prior to Sara plus the 25,000 loan repayment from Stewart. Initial mortgage $157,000. Final mortgage amount was about $145,000, 7 years later.
[136] However, I note that no documentation was provided by Ms. Wilson to support any of these assertions. This is contrary to the Order of Price J. as set out at paragraph 134. The Respondent did provide some information, and I will address that information below.
[137] Ms. Wilson was also questioned about her finances in an examination that took place on October 31st, 2016. In that examination, Ms. Wilson was confronted with an audio recording in which she acknowledged that she did not put any money into the Niels Avenue property. After having been confronted with this recording, Ms. Wilson ultimately stated that Stewart paid various amounts on her behalf at the time of the closing on the Niels Avenue property.
[138] The disclosure from both the Respondent and Ms. Wilson remained woefully deficient. In that respect, in his October 10th, 2017 decision finding the Respondent in contempt, Price J. stated:
[142] Ms. Fatahi-Ghandehari asserts that the property at 1360 Niels Avenue, Burlington, was bought with $120,000 of funds that were family property of Mr. Wilson and Ms. Fatahi-Ghandehari. The property was registered in the names of Mr. Wilson’s mother and brother. It was sold without notice to Ms. Fatahi-Ghandehari on July 12, 2016, for $465,000.
[143] Mr. Wilson was ordered to produce the Agreement of Purchase and Sale for 1360 Niels Avenue, the lawyer’s client trust ledger, and a tracing of the funds used to purchase the property. This evidence was required in order to establish whether the funds derived, as Ms. Fatahi-Ghandehari alleges, from her and Mr. Wilson’s family property.
[144] Neither Mr. Wilson nor his mother, Elizabeth Wilson, produced the Agreement of Purchase and Sale for the purchase of 1360 Niels Avenue, which would have identified who signed as purchaser, and detailed the amounts of the deposit and the balance required. Mr. Wilson states that he contacted the lawyer who acted in the purchase, and that he did not have the Agreement of Purchase and Sale in his file. He provided no evidence of efforts to obtain the Agreement from the realtor or broker who assisted in the purchase.
[145] Mr. Wilson and his mother also failed to produce a tracing of the funds used for the purchase, which my Order required. The Lawyer’s reporting letter, with a paragraph entitled “trust ledger statement”, shows a down-payment of $108,110 for the purchase of the property on July 24, 2009. A three-page print-out from 2016 of Elizabeth Wilson’s bank account in July 2009, shows that she had only $1,584.66 in her account until July 23, 2009, the day before the purchase, when two sums for the combined amount of $90,082.25 were deposited, and, $83,110.00 withdrawn from the account on the day of the purchase.
[146] There is no tracing of the funds used for the purchase the property, showing the source of the two amounts deposited to Ms. Wilson’s account the day before the purchase, nor the source of the $25,000 difference between the withdrawal amount of $83,110.00 from Ms. Wilson’s account and the down payment of $109,110, shown in the lawyer’s reporting letter. Mr. Wilson states that he provided $10,000 cash as a deposit for the purchase, and Elizabeth Wilson testified that she provided $25,000 cash toward the purchase, but neither produced any record of those funds, nor gave any satisfactory explanation for their failure to produce such evidence.
[147] I find, beyond a reasonable doubt, that Mr. Wilson wilfully failed to produce the Agreement of Purchase and Sale, and failed to produce a tracing of the funds used to purchase the property.
[139] Price J. considered the issue in respect of the production again in his unreported endorsement of November 23rd, 2017. The deficiencies noted at that point include the following that are relevant to the issues I have to determine:
a) Documentation evidencing the transfer of funds in relation to the loans from Elizabeth Wilson.
b) Documentation in relation to the sale of 1360 Niels Avenue.
c) Documentation showing the ultimate source of the funds- $83,110 and $25,000 from Elizabeth Wilson and Greg Wilson.
d) The Trust Agreement, if any, and the final Agreement of Purchase and Sale in relation to the Niels Avenue purchase, as the agreement provided is “in trust”.
e) Elizabeth Wilson’s Affidavit signed and sworn.
[140] The Respondent was given one final opportunity to provide this evidence. He was ordered to serve and file his sworn financial statement by December 1st, 2017, and to remedy the balance of the deficiencies by December 8th, 2017 at noon. A further appearance was scheduled for December 11th, 2017 before Price J.
[141] In advance of the hearing on December 11th, 2017, the Respondent delivered further disclosure materials. The Applicant delivered reply materials, and the Respondent claimed that he did not receive those materials. The Respondent also sought to bring a motion to stay the Applicant’s contempt motion. As a result, the matter was adjourned on December 11th, 2017. Leave to bring a motion to stay the Applicant’s contempt motion was refused.
[142] Ultimately, Price J. adjourned the contempt hearing on a further occasion in order to provide the Respondent with the opportunity to purge his contempt. The contempt motion was argued in March of 2018 and a decision was rendered in September of 2018 (2018 ONSC 5579).
[143] In that decision, Price J. stated the following about the Niels Avenue property:
[27] Paragraph 7(e) of the July 7, 2016, Order required Mr. Wilson to produce a summary and tracing of funds that were used to purchase the Niels Avenue property in Burlington, together with the trust ledger statement. Mr. Wilson has provided an affidavit stating where the funds for the purchase came from. He has also provided the solicitor’s trust ledger. Ms. Fatahi-Ghandehari asserts that there are discrepancies between the two, but that is a matter to be pursued through questioning or at trial. I find that Mr. Wilson has complied with paragraph 7(e) of the Order in that regard.
[144] The reference to pursuing the discrepancies through questioning or at trial is difficult to square with Price J.’s ultimate conclusion that the Respondent’s pleadings should be struck. However, I have reviewed the Respondent’s Affidavit sworn on December 7th, 2017, and it provides some documentation. This documentation includes handwritten notes that apparently show loans made by Ms. Wilson to the Respondent. However, there are no statements that show any fund transfers from Ms. Wilson to the Respondent at any point to support these “loans”.
[145] I also note that the Respondent provided a series of other Affidavits for the Court between November of 2017 and March of 2018. None of these other Affidavits addressed production of records in respect of the Niels Avenue property in any way beyond the December 7th, 2017, Affidavit.
[146] In addition, I note that the missing items continued to include the following:
a) The Agreement of Purchase and Sale for the Niels Avenue property from when it was purchased in 2009.
b) Evidence that Ms. Wilson had $90,000.00 in funds to put towards the property. The only evidence that was provided was some statements from National Bank that showed $43,000.00.
c) The trust agreement between Gregory and Elizabeth Wilson.
[147] In her Affidavit on this motion, Ms. Wilson has also provided excerpts from an Affidavit filed by the Applicant on January 1st, 2018. The Applicant alleges that Ms. Wilson and her counsel fabricated this Affidavit. The Applicant points out that the original Affidavit was 176 pages long, while the one provided by Ms. Wilson and her counsel was only 13 pages long.
[148] I have reviewed both Affidavits and have concluded that Ms. Wilson’s Affidavit is misleading and that the Affidavit provided is not the Applicant’s Affidavit. Ms. Wilson purports to attach the Applicant’s Affidavit to hers on the following basis:
(c) I had the financial means to purchase the Niels Avenue property in 2009, and said evidence has not been before this Honourable Court and which has lead to this Honourable Court to draw certain conclusions. For example, at paragraph 70 (please recall Exhibit “B” at paragraphs 42 and 70), wherein this Honourable Court has stated that I acknowledged that the funds for the Niels Court [sic] property did not come from me. However, the Respondent, Mr. Wilson made the down payment towards the purchase price on my behald when I was out of the country when the Offer was made. The $10,000.00 payment was part of the $25,000.00 loan repayment from GTA to me. This is confirmed in the books and records of the business. The balance of the loan payment was made to me from the business in 20101, and said cheque was directly provided to Ms. Johannesen-Wilson by the Applicant. Further, it is confirmed by Ms. Fatahi-Ghandehari during a court proceeding before Mr. Justice Price, on March 27, 2017, attached to this My Affidavit and marked as Exhibit “D” is a tru copy of the Affidavit Ms. Fatahi-Ghandehari, sworn January 2018 in which she states that she paid $20,000.00 and $24,000.00 as a loan repayment to me.
[149] Other than the first two pages, the January 1st, 2018 Affidavit submitted by Ms. Wilson bears no resemblance to the document that was in the continuing record and that was sworn by the Applicant. The version provided by Ms. Wilson includes an excerpt from a transcript of court proceedings that does not appear in the Applicant’s Affidavit anywhere that I can see.
[150] I would also note that Ms. Wilson’s claim that the Applicant stated in her Affidavit that the Applicant had deposed that she “paid $20,000 and $24,000 as a loan repayment to me” is not contained anywhere in the Applicant’s January 1st, 2018 Affidavit. The Affidavit actually states “they seem to be able to find evidence of payments made to Elizabeth Wilson but no evidence of actual loans being given to Stewart are ever provided.” In other words, there was evidence of the money flowing from the Respondent to Ms. Wilson, but there was no evidence of the original “loans”.
[151] As a result, that portion of Ms. Wilson’s Affidavit is of no value to the Court. It also raises more general questions of Ms. Wilson’s credibility. However, given my disposition of this matter, I do not have to resolve those credibility issues. In any event, resolving those credibility issues would be akin to a proceeding under Rule 20 rather than Rule 21.
b) The Issues to be Determined
[152] As I have noted, there are two questions to be determined:
a) What rights Ms. Wilson has as a result of purchasing the assets from the Respondent’s Trustee in Bankruptcy?
b) Is Ms. Wilson bound to the finding that the Respondent beneficially owns the Smithville Property?
[153] I will deal with each issue in turn. Before doing so, however, I must address a couple of issues that I am not dealing with. First, in her factum on the Rule 21 motion in respect of Ms. Wilson, the Applicant states:
Even though this is not a criminal court proceeding, it is this court’s responsibility to find that Elizabeth Wilson’s conduct is criminal, that what she has done constitutes forgery and perjury, on the other hand if this court only chooses to dismiss the motion without making a decision on the criminal acts of Elizabeth Wilson then this honourable court should note in its order her wrongdoing so that the criminal court will deal with Elizabeth Wilson’s fraud on the court, perjury and fabrication of court documents.
[154] This submission concerns me. As I read it, the Applicant is asking me to make findings of criminal liability against Ms. Wilson. There are many safeguards that have existed for centuries in our criminal law, such as the right for an accused to make full answer and defence, the right to remain silent and the right for an accused person to know the charges that they have to face. Acceding to any of the Applicant’s requests and making findings in respect of criminal liability against Ms. Wilson in this proceeding would require me to trample on those rights. I decline to do so, and I expressly note that nothing in these reasons should be taken as making any specific findings of criminal liability. This is a civil and family proceeding, and my findings are made in that light. Whether my findings are even admissible in a criminal trial is something that I do not have any jurisdiction to determine as the criminal issues are not before me.
[155] Second, the Applicant has alleged that Ms. Wilson has committed perjury and fraud on the Court. I have touched on these allegations as it concerns the actions purchased by Ms. Wilson and the misleading Affidavit filed by Ms. Wilson, and I will touch on them below in my disposition of these issues. However, my discussion of these issues is explicitly confined to this civil action and civil fraud, which is different from fraud under the Criminal Code. These reasons should not be read any more broadly than that.
c) Ms. Wilson’s Rights from Purchasing the Action
[156] In my view, this is probably a case where the doctrine of issue estoppel should be considered, because Ms. Wilson has purchased the rights to the action and is, therefore, Mr. Wilson’s privy. I have found (at para. 125) that this action has been fully determined by the matrimonial action. Ms. Wilson became a party to this action when she purchased it in 2017 and has been represented before this Court by Mr. Robson until the point when her current counsel came on record. Her counsel has made submissions about this action, and about the issues in the matrimonial action. It is now res judicata on the basis of issue estoppel. 402 Mulock Investments Inc. v. Wheelhouse Coatings Inc. 2022 ONCA 718. Permitting this claim to continue would be subjecting the Applicant to proceedings more than once for the same cause of action.
[157] However, even if I am wrong in that conclusion, I am of the view that permitting Ms. Wilson to litigate this action would be an abuse of process. I have considered the Toronto decision in detail in previous decisions I have made in this case. I have also discussed that decision above. However, it is worth setting out the relevant paragraphs on abuse of process as they inform a number of the decisions that follow. In that decision, the Court explained abuse of process as follows:
51 Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.
52 In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80.
53 The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51; Franco, supra, at para. 55).
54 These considerations are particularly apposite when the attempt is to relitigate a criminal conviction. Casting doubt over the validity of a criminal conviction is a very serious matter. Inevitably in a case such as this one, the conclusion of the arbitrator has precisely that effect, whether this was intended or not. The administration of justice must equip itself with all legitimate means to prevent wrongful convictions and to address any real possibility of such an occurrence after the fact. Collateral attacks and relitigation, however, are not in my view appropriate methods of redress since they inordinately tax the adjudicative process while doing nothing to ensure a more trustworthy result.
55 In light of the above, it is apparent that the common law doctrines of issue estoppel, collateral attack and abuse of process adequately capture the concerns that arise when finality in litigation must be balanced against fairness to a particular litigant. There is therefore no need to endorse, as the Court of Appeal did, a self-standing and independent “finality principle” either as a separate doctrine or as an independent test to preclude relitigation.
[158] Permitting Ms. Wilson to re-litigate the precise claim that was dismissed as against the Respondent would be damaging to the integrity of the adjudicative process. It would be permitting the claims that had been dismissed in the matrimonial action and dismissed in the Respondent’s Rule 59.06 action to be relitigated.
[159] As a result, I find that the action in Court File No. 118/15 has, for all parties, been disposed of by the decisions in the matrimonial action and I dismiss that action.
d) Is Ms. Wilson Bound to the Finding in Respect of the Smithville Property?
[160] Yes, for two reasons. First, contrary to the submissions of Ms. Wilson, she has had the opportunity to make submissions and provide evidence in this matter. Second, in any event it would be an abuse of process to permit Ms. Wilson to relitigate this issue given the history of this case. I will deal with each point in turn.
Ms. Wilson Has Had the Opportunity to Present Evidence
[161] Ms. Wilson’s principal argument against being bound to the previous finding in respect of the Smithville property is that she has not had the opportunity to be heard in this matter. In Ms. Wilson’s factum for this motion, she sets out a list of some of the facts that “she has been unable to present to this Court previously”. This list includes:
a) Ms. Wilson claims that she had a net worth in excess of $900,000 when she retired in December of 1999.
b) Ms. Wilson claims that she purchased the Niels Avenue property for the benefit of her son Greg Wilson, and that she provided significant down payments, including monies from her RRSP.
c) Ms. Wilson claims that she had a trust agreement with her son Greg Wilson in respect of this property.
d) Ms. Wilson claims that, in 2017, she purchased all of the assets from the bankruptcy via bank draft and cash.
[162] There are two reasons why this argument fails. First, Ms. Wilson has been given the opportunity to participate in this process and has not taken it. She also provided an Affidavit in November of 2017 that set out some of the same assertions (see paragraph 135), but never provided the documentation to support her claims.
[163] Second, Ms. Wilson was ordered to produce certain documents, and she has failed to do so. For example, the Order of Price J. set out a requirement to produce documentation showing that the down payment for the Neils Avenue property came from her mutual fund accounts, which is one of the items that Ms. Wilson claims that she has not been able to present to the Court. This is not an opportunity for a re-do. Ms. Wilson was well aware of the issue before the Court in respect of the Smithville property and was repreresented by counsel. She had the opportunity to provide documentation and make submissions on the issue of who provided the funds for that property. She simply chose not to do so.
Application of the Abuse of Process Doctrine
[164] In the undefended trial, I found that the funds to purchase the Niels Avenue property came from the Respondent, and not from Ms. Wilson. The question is whether permitting Ms. Wilson to challenge this finding would be an abuse of process.
[165] It is helpful to start the analysis by noting that the doctrine of res judicata, as set out at paragraphs 108 and 109 does not apply here. Ms. Wilson is, as her counsel has noted, her own person and has her own rights. However, that does not mean that the matter must go to trial or otherwise be the subject of further proceedings. Ms. Wilson has been given the right to participate in this process to address that issue, and she had counsel to assist her in making those submissions and presenting that evidence.
[166] I am also of the view that allowing Ms. Wilson to advance an argument that the Smithville Property is beneficially owned by her would be an abuse of process for the following reasons:
a) As detailed above, Ms. Wilson has had an opportunity to participate in this process. Rather than taking that opportunity, Ms. Wilson has declined to produce documents that Price J. ordered her to produce. It would be an abuse of process to permit Ms. Wilson to continue this litigation by arguing that she should be entitled to produce these documents. They should have been provided seven years ago.
b) There is no evidence before the Court (or otherwise available to it) other than Ms. Wilson’s unsupported assertions that would suggest that Ms. Wilson had the funds to purchase the Smithville Property.
c) The Respondent and those allied with him in this litigation have been engaging in many different tactics, including multiple appeals, to attempt to avoid the Respondent’s family law obligations to the Applicant.
d) Allowing Ms. Wilson to challenge this Court’s finding in respect of who owns the Smithville property would be allowing her to do indirectly what the Respondent was not allowed to do directly. It would also bring the administration of justice into disrepute as it could result in the Court reaching inconsistent findings by determining, in the matrimonial action, that the Respondent beneficially owned the Smithville property and then determining, in an action involving Ms. Wilson, that she beneficially owned the Smithville property.
[167] Counsel for Ms. Wilson relies on the decision in Canam Enterprises Inc. v. Coles (2001), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481, rev’d 2002 SCC 63. In that decision, the Supreme Court of Canada allowed the appeal for the reasons of the dissenting judge. They concluded that it was not an abuse of process to allow a new claim, that was different from a previous claim to be brought, even if the claims were related. However, the Court in Coles noted that the claim was one that had not been raised before. This case is different from Coles. Ms. Wilson was involved in this litigation from an early stage, records were sought from her, and she was represented by counsel as the Court determined the issue of the Niels Avenue property.
[168] I acknowledge that the Court may decline to apply res judicata or abuse of process if the party seeking to invoke the doctrine is guilty of some blameworthy conduct. X v. Y, 2016 ONSC 4333. Counsel for Ms. Wilson argues that I must determine whether the Applicant “exercised blameworthy conduct in attributing [Ms. Wilson’s] property to Mr. Wilson’s net family property , and whether said conduct meets the threshold to render the doctrine of res judicata inoperable.”
[169] The problem with this argument is that it was not the Applicant who attributed the Niels Avenue property to the Respondent’s NFP. It was the Court that did this and did so after seeking evidence from Ms. Wilson. There is no blameworthy conduct on the part of the Applicant.
[170] For all of these reasons, I have concluded that Ms. Wilson is also bound to the Court’s previous finding that the Smithville property is beneficially owned by the Respondent. Therefore, I conclude that the Applicant is entitled to enforce her judgment for equalization and spousal support against the equity in the Smithville property, along with the Respondent’s other assets.
e) The Remedy
[171] The conclusion in the previous section brings me to the issue of remedy. In her notice of motion, the Applicant has sought a series of Orders from the Court. Those orders include:
a) An order finding that both the Respondent and Ms. Wilson are frivolous and vexatious litigants.
b) An order that the Respondent, Ms. Wilson and anyone else residing at the Smithville property immediately vacate it without removing anything in or on the property.
c) An order granting the Applicant and/or her counsel leave to sell the Smithville property without any signatures required from either the Respondent or Ms. Wilson.
d) An order for the money from the sale of the Smithville property to be used to pay the amounts owing to the Applicant and that any extra proceeds be paid into Court to the credit of these case-managed proceedings.
[172] The Applicant also argues that the property should be treated as being held for her in trust. In my reasons on the undefended trial, I stated:
[105] The money used to purchase the Niels Avenue property was, therefore, family property. The principles relating to the doctrine of resulting trusts is set out in Rascal Trucking v. Nishi 2013 SCC 33. Since the proceeds from the Niels Avenue property were used to purchase the Smithville property, it is open to Ms. Fatahi-Ghandehari to seek to trace matrimonial funds through to this asset.
[173] I went on to grant the Applicant a preservation order over the Smithville property, which permitted the registration of the CPL over the Smithville property. This was done, in part, to ensure that the Respondent and Ms. Wilson could not move any assets that the Applicant might be entitled to claim an interest in.
[174] Determining whether to grant a vesting order starts with understanding that the family law regime in Ontario is based on an equalization payment regime, and that separating spouses are not entitled to a division of property. Rather, they are generally entitled to an equalization payment. Thibodeau v. Thibodeau, 2011 ONCA 110, 104 O.R. (3d) 161, at para. 37.
[175] However, the Court does have a wide power to make vesting Orders under section 100 of the Courts of Justice Act and section 9(1) of the FLA. Section 9(1)(d)(i) of the FLA allows for a transfer of title in a property. Subsection (ii) allows for the partition and/or sale of a property. These Orders are discretionary and have their origins in the Court’s equitable jurisdiction. Lynch v. Segal (2006), 2006 CanLII 42240 (ON CA), 82 O.R. (3d) 641 (C.A.), at para. 27.
[176] Although the Court has a wide range of discretion, some principles apply to their exercise. From a review of the case-law, I have extracted the following points:
a) The Court should be satisfied that there is some reasonable relationship between the value of the asset to be transferred and the amount of the targeted spouse’s liability. Lynch, at para. 33; Albaz v. Rihawi, 2024 ONSC 812, at para. 145.
b) Generally, the Court’s discretion will only be exercised in favour of a s. 9(1) order where it is established, based on the targeted spouse’s previous actions and reasonably anticipated future behaviour, that the equalization payment order granted will likely not be complied with in the absence of additional, more intrusive provisions. Thibodeau, para 42; Hess v. Hess, 2023 ONSC 6399, at para. 12.
c) These remedies should not be imposed routinely or indiscriminately, and only if there is a real need for them. Such orders are to be made only after all relevant considerations have been taken into account, and not as a matter of course. Thibodeau, at paras. 40-41.
[177] At this point, the Applicant is (as described) entitled to a judgment of somewhere in excess of $1,500,000 as against the Respondent. This judgment was affirmed by the Court of Appeal eighteen months ago, and the Respondent has taken no steps to comply with it. Indeed, the Respondent’s submissions on the Anderson decision strongly suggest that the Respondent is prepared to take almost any step to ensure that this judgment is not enforced. This appears to be the type of case where some sort of section 9(1) Order should be granted in respect of the Smithville property.
[178] The Applicant is entitled to collect on the judgment in the family law case and is entitled to collect by realizing on the equity in the Smithville property. However, it has been described as a very large property. As a result, I do not know whether there is more (or less) equity in the Smithville property than the value of the judgment the Applicant received. Therefore, I am disinclined to simply transfer title in the Smithville property to the Applicant without permitting further steps to be taken.
[179] In that respect, I also note that there are likely to be additional costs owing from the Respondent to the Applicant as a result of this proceeding, but there will be a deduction from the total judgment to account for the proceeds from the one car that was seized.
[180] Given all of these observations, I am directing as follows:
a) The Respondent has forty-five (45) days from the release of these reasons to satisfy all outstanding amounts owing under the judgment in the family law proceeding and all costs awards currently awarded.
b) These monies are to be paid by certified cheque or money order and delivered to the Respondent’s counsel in the same manner as the costs were delivered after I rendered the decision on the Applicant’s Rule 60 motion.
c) In the event that the Respondent does not satisfy those amounts owing within the forty-five (45) day period, then I hereby exercise my discretion under section 9(1)(d)(ii) of the FLA and direct that the Smithville Property be seized and sold. The proceeds will be used to pay the judgment owing to the Applicant as well as any costs awards. Any proceeds remaining will be paid out to the Respondent.
d) In the meantime, the Respondent and Ms. Wilson are directed to preserve the Smithville property and are bound by the other restrictions that remain on that property.
[181] I will retain jurisdiction to address any issues that may arise if the sale of the property is necessary. Those issues will be discussed in our next appearance, which I will establish below. None of these issues are grounds for the parties to contact me or my judicial assistant and my prohibition on out-of-court communications remains in place.
Issue #4- Should the Action Against Abrahams LLP and Mr. Siddiqui be Allowed to Continue?
[182] No. I am of the view that the action against Abrahams LLP and Mr. Siddiqui is, from a legal perspective, no longer sustainable by the Respondent. It would be an abuse of process to permit this action to continue.
[183] I reach that conclusion for two reasons. First, it is important to look at what the Statement of Claim states. It is very short, but the operative paragraph of the Claim says:
- From on or about December 1, 2014 to a date not yet known, Sara Fatahi-Ghandehari who is the ex-spouse of Stewart Wilson, misappropriated funds from 2246519 Ontario Inc. and has transferred those funds. The defendants took such funds knowing that they were misappropriated and have used such funds for their benefit not withstanding knowledge that they were improperly misappropriated by Sara Fatah-Ghandehari.
[184] The Reply also contains an allegation that the Defendants were acting contrary to their obligations under the Rules of Professional Conduct.
[185] The allegations are, in essence that the Defendants knowingly participated in the Applicant’s alleged fraud. This is a derivative action. The claims that the Applicant engaged in fraudulent conduct against the Respondent have been dismissed. As a result, this action cannot survive that dismissal.
[186] Second, as has been noted in Yae v. Park, 2013 ONSC 1331 at para. 41, and Lochner v. Ontario Civilian Police Commission 2020 ONCA 720 at para. 19, bringing actions against the other party’s lawyers merely for defending their rights is one of the hallmarks of a vexatious litigant. I am of the view that this action can also be dismissed as an abuse of process.
[187] For completeness, I should also briefly touch on the issue of the Rule 24 and 48 motions that were brought by Abrahams LLP and Mr. Siddiqui. Had that been the only issue for me to determine, I would not have dismissed the action for delay. Mr. Robson is correct in his submission that these actions were held in abeyance during the case management process from 2020 to 2024. My endorsement of August 19th, 2020 clearly states “in terms of the other matters proceeding before me, no further steps are to be taken in them until I provide the parties with further directions”. The Respondent had no ability to move this action forward during this time as I would not permit it. Therefore, the delay is not the Respondent’s responsibility.
Issue #5- Court of Appeal Costs Orders
[188] The Applicant argues that this Court has the jurisdiction to order the enforcement of costs orders made by the Court of Appeal. In her submissions, the Applicant identifies two costs awards as being outstanding, as follows:
a) $13,560.00 ordered by Benotto, Zarnett and Copeland JJ.A. on May 27th, 2022.
b) $2,721.66 ordered by Zarnett J.A. on December 7th, 2022.
[189] I suspect that there may be a third costs award outstanding from the Court of Appeal’s decision on February 2nd, 2023. However, I am not aware of that amount.
[190] In any event, the Applicant does not provide any case-law to support her assertion that I have the jurisdiction to enforce the Court of Appeal’s costs orders. Instead, she says “His Honour, as a case manager, has the power to make an order for [the Respondent] to pay the costs from Court of Appeal. Further, his Honour has the authority to do so pursuant to the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c 31” (“the FRO Act”).
[191] I have reviewed the FRO Act and I can see nothing in its provisions that specifically provides me with the jurisdiction to enforce the Court of Appeal’s costs orders. It arguably allows those Orders, in appropriate cases, to be enforced as support. However, that is a determination that would have to be made by the Court that issues the order.
[192] This brings me to the case-law that exists on the question of whether the Superior Court of Justice has the jurisdiction to enforce the Court of Appeal’s Orders. The case law that I was able to find that was directly on point was limited to three decisions: Sears v. Sears (2005), 2005 CanLII 5863 (ON SCDC), 195 O.A.C. 376 (Div. Ct.), Bank of Nova Scotia v. Gillespie, 2008 CarswellOnt 3803 (Ont. S.C.) and Mendlowitz v. Chiang (Unpaid Court Costs), 2011 ONSC 2228.
[193] The most recent case is Chiang. In that decision, Marrocco J. considered both Sears and Gillespie. His Honour ultimately concluded that this Court did not have the jurisdiction to enforce costs decisions made by the Court of Appeal. In Chiang, both the Court of Appeal and this Court had made a series of costs orders against the Defendant, Jay Chiang. The Trustee in Bankruptcy then moved for an Order striking out the Defendant’s Statement of Defence. At paragraphs 6 and 7 of his reasons, Marrocco J. stated:
[6] It is true that Doherty J.A. heard two motions. It is also true that Rule 57.03(1) contemplates that a court hearing a motion will make an order for costs. The rule also provides that the court can dismiss the party's proceeding for failing to comply with that costs order. Only the Court of Appeal can dismiss an appeal to it. Accordingly, the rule must mean that the court, referred to in the rule, is the court before which the matter is proceeding. An appeal is a separate proceeding from the litigation which precedes or follows after it.
[7] This interpretation is consistent with the definition of the word "court" in Rule 1.03(1), which provides that the word "court" means "the court in which a proceeding is pending…". I appreciate, in making this observation, that the definition of the term “court” is subject to the qualification "unless the context requires otherwise" at the beginning of Rule 1.03. However, a contextual analysis cannot provide this court with jurisdiction to dismiss an appeal and, therefore, there is no reason to alter the definition of the term "court" as it appears in the rule.
[194] The decision in Chiang was made under the Rules of Civil Procedure. However, that is not the end of the matter. There are other cases decided in the civil context where this Court has held that it has the jurisdiction to strike out pleadings where a costs order of the Court of Appeal has not been complied with. Shehkdar v. K&M Engineering and Consulting Corp., 2006 CanLII 40618 (Ont. S.C.). The Shehkdar decision was decided before Chiang, so it may have been overtaken by Chiang.
[195] However, this case has proceeded under both the Rules of Civil Procedure and the Family Law Rules. Therefore, I have also reviewed the Family Law Rules, and the provisions in terms of the making of costs awards are similar. Rule 24 speaks to “the Court” in the making of costs awards. Rule 38 sets out the procedure for appeals and adopts portions of the Rules of Civil Procedure. This structure would suggest the same conclusion as is set out in Chiang.
[196] However, it appears to me that Rule 1(8) of the Family Law Rules may provide some room for relief, although I note that the Applicant did not argue this point. Rule 1(8) states that “if a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter”.
[197] There are some cases under this Rule that seem to suggest that the Rule can be used for this Court to enforce Court of Appeal costs awards. Myers v. Myers, 2014 ONSC 1804, at para, 36(1); Van Delst v. Hronowsky, 2021 ONSC 2353, at para 14. Ultimately, the interpretation turns on the words “in a case or related case.” An appeal of a decision that was made in this case is a related case. Therefore, this Court has the jurisdiction to require the Respondent to pay the costs awards of the Court of Appeal under Rule 1(8) of the Family Law Rules.
[198] However, that jurisdiction can only be exercised when the requirements under Rule 1(8) have been met. Those requirements, as set out in Myers (at para. 29), are whether there is a triggering event that would allow the application of Rule 1(8), whether it is appropriate to exercise discretion in favour of the non-complying party and if I do not exercise my discretion in favour of the non-complying party, a determination of the appropriate remedy under the provisions of Rule 1(8).
[199] In this case, there are issues on the second factor. Specifically, the Applicant also has costs orders that have been made against her at the Court of Appeal that are outstanding. In order for me to exercise my discretion, I conclude that the non-complying party (the Respondent) is entitled to have any costs owing set off against costs from the Court of Appeal that he is entitled to. Once that set-off is applied, the Applicant should be entitled to the balance owing.
[200] As a result, for the foregoing reasons, the Applicant is entitled to the net amount of costs owing from the Court of Appeal’s awards. That amount is to be calculated between the parties. Given that the numbers are relatively close and that both sides have failed to pay costs awards that have been made by the Court of Appeal, I exercise my discretion and decline to order any interest on the balance that is owing.
[201] The Respondent is to pay the balance within forty-five (45) days of the release of these reasons.
The Remaining Issues and Next Steps
[202] The next steps in this case are defined by what the remaining issues are. As I have indicated, all of the Respondent’s claims against the Applicant have been dismissed. In addition, Ms. Wilson has no rights to pursue any of the actions where she has stepped into the shoes of the Respondent. Finally, I have concluded that Ms. Wilson is also bound by the finding that the Smithville property is beneficially owned by the Respondent.
[203] The Respondent has been given forty-five days to pay the matrimonial judgment, failing which I will conduct a judicially supervised sale of the Smithville Property to satisfy that judgment.
[204] I am also case-managing the Braidmore action. A timetable was filed in this action, and I do not believe that it has been complied with. Counsel on the Braidmore action are directed to attend before me at the next appearance so that I can receive information on this action and determine what the next steps should be. I would also observe that, once the monies owing to the Applicant are fully paid that this action might not require case management and might be appropriately transferred back to Toronto.
[205] In the meantime, however, I would remind all of the parties (including Mr. Braidmore) that the preservation Order of Price J. continues to be in full force and effect.
[206] Finally, there is the action in Court file CV-2021/16. This is the action brought by the Applicant to recover funds from the Respondent. At our next case management hearing, we will need to discuss the following questions:
a) Does this action claim anything beyond the amounts that are owing in legal costs and as a result of my disposition of the matrimonial action?
b) If so, on what basis are those claims advanced?
c) If not, then is the action necessary or can the outstanding amounts be dealt with by way of enforcing a judgment?
[207] In order to deal with these matters, I will convene a further Case Management meeting by ZOOM at 9:00 a.m. for forty-five minutes. The agenda will be as set out in paragraphs 202-206. The parties are to advise my assistant as to their availability for the weeks of September 16th and 23rd, 2024. Their communications are to be limited to identifying dates and to providing me with costs submissions as described below.
[208] I have picked those weeks because they are more than forty-five (45) days after the date that these reasons are being released. I will also expect the parties to advise me as to whether anyone has brought an appeal of my decision, as that information may determine what steps I can take to conclude this matter.
[209] If any party has any other items that should be added to the issue agenda, then those can be discussed at the next hearing. There is nothing that is so urgent in this case that it cannot wait to be discussed until then. For clarity, as I have stated above, the prohibition on writing to my judicial assistant on this case continues in full force and effect. For simplicity, the only correspondence any party is permitted to send to my judicial assistant between now and the appearance in September is a response to her e-mail about dates and submissions on costs. Correspondence on anything else from anyone at all will attract a citation for contempt.
Conclusion, Orders and Costs
[210] For the foregoing reasons, I order as follows:
a) The Applicant’s motion to have my December 1st, 2022 decision in respect of the bailiff, and the accompanying costs award varied, is dismissed.
b) The entirety of the action in Court File No. 118/15 is dismissed in respect of the Respondent’s rights, 2246519 and Ms. Wilson’s rights. This action is at an end.
c) The Respondent’s claim against Abrahams LLP and Mr. Siddiqui is dismissed in its entirety.
d) Ms. Wilson is bound to the Court’s findings that the Smithville property is beneficially owned by the Respondent.
e) If the Respondent does not pay all monies owing to the Respondent for costs and under the matrimonial judgment within forty-five days of the release of these reasons, then the Court will supervise a sale of the Smithville property and pay the Applicant’s judgment out of the proceeds from that property.
f) The Court will convene a case conference in the week of September 9th, 2024 or September 16th, 2024 for the purposes of determining the next steps in this matter, including in respect of any issues in respect of the Smithville property.
[211] This brings me to costs submissions. There are three separate sets of costs that must be addressed on these motions, as follows:
a) The claim for costs in respect of the Applicant’s Rule 59.06 motion. The only parties involved in those costs submissions are the Applicant and Associated Bailiffs.
b) The motions in respect of the scope of the remaining actions. These motions involved the Applicant, the Respondent and Ms. Wilson.
c) The motion in respect of Abrahams LLP and Mr. Siddiqui. This involves the Respondent and the third parties.
[212] I expect to receive separate costs submissions on each issue, as there are different factors that apply to each set of circumstances and different parties will be seeking costs for different issues. For example, it appears to me unlikely that there will be a claim for substantial indemnity costs in respect of the Applicant’s motion under Rule 59.06. However, given the Applicant’s position on abuse of process, I anticipate that substantial indemnity costs may be sought by the Applicant for various portions of the matter.
[213] The following directions apply to costs submissions:
a) The costs submissions are to be delivered separately for the three separate parts of this motion, as set out above.
b) Any party seeking costs are to serve, file and upload their costs submissions within twenty-one (21) calendar days of today’s date. Those submissions for each of the three different areas are to be no more than four (4) single-spaced pages, exclusive of bills of costs, case-law and offers to settle.
c) Any party responding to a request for costs is to serve, file and upload their costs submissions within twenty-one (21) calendar days of today’s date. Those submissions for each of the three different areas are to be no more than four (4) single-spaced pages, exclusive of bills of costs, case-law and offers to settle.
d) Any reply submissions to responding submissions are to be served, filed and uploaded within seven (7) calendar days of receiving the reply submissions. Those submissions are to be no more than two (2) single-spaced pages, exclusive of case-law.
e) All submissions must be uploaded to CaseLines and filed with the Court Office. They are also to be sent by e-mail to my judicial assistant. Sending them to my judicial assistant is not filing them.
[214] I will remind the parties again that, other than providing the costs submissions and advising my assistant of their availability for dates to address the final few matters, the parties are prohibited from communicating with my judicial assistant. The consequences of breaching that directive have been spelled out at paragraph 209, above.
LEMAY J
Released: July 31, 2024
COURT FILE NO.: FS-15-00083320-0000
DATE: 2024-07-31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sara FATAHI-GHANDEHARI
Applicant
- and -
Stewart WILSON
- and -
Elizabeth WILSON
- and -
Abrahams LLP
Respondent
REASONS FOR JUDGMENT
LEMAY J
Released: July 31, 2024