Shakour v. Amer, 2025 ONSC 2344

CITATION: Shakour v. Amer, 2025 ONSC 2344

COURT FILE NO.: CV-21-00669802-000 CV-21-00696618-0000

DATE: 20250416

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SAYED ABD EL SHAKOUR

Plaintiff

– and –

YOUSSEF AMER, REEM AMER and DOUGLAS H. HANCOCK

Defendants

Howard Shankman, for the Plaintiff

Defendants on their own behalf

AND

SAYED ABD EL SHAKOUR

Plaintiff

• and –

MOHAMED LEITH BAZIAN (aka MOHID BAZIAN)

Defendant

Howard Shankman, for the Plaintiff

Mohamed Bazian on his own behalf

HEARD: April 15, 2025

REASONS FOR JUDGEMENT

Merritt j.

OVERVIEW

1This matter came before me for trial. At the outset of the trial, the Plaintiff moved for Judgment in accordance with a settlement between the parties.

2The Defendants Youssef Amer (“Youssef”) and Mohid Bazian (“Bazian”) appeared by zoom and the Defendant Reem Amer (“Reem”) did not appear. I am satisfied that that Reem was notified of the trial date today.

3At the pre-trial conference Stinson J. ordered that Mr. Gray be removed as lawyer of record for the Defendants in both actions. Justice Stinson also ordered: “if the defendants intend to retain new counsel they must do so immediately, in light of the upcoming trial date of April 14, 2025. I further order them to serve and file Notices of Intention to Act in Person within 5 days, pending the potential appointment of new counsel.”

4None of the Defendants retained counsel to represent them at the trial. Notwithstanding that they did not serve and file Notices of Intention to Act in Person as required by Stinson J., I allowed Youssef and Bazian to represent themselves and afforded them the opportunity to give viva voce evidence, which Youssef did.

DECISION

5The Plaintiff is entitled to judgment against the Defendants in the amount of $250,000.

BACKGROUND FACTS

6Youssef and Reem were the owners of 133 Richmond Rd., Oakville the “Property”.

7Plaintiff claims that the Plaintiff and Youssef entered into an agreement whereby the Plaintiff agreed to provide design services and arrange for material, labour and construction to improve the Property in exchange for at 50% interest in the property. Youssef executed a Trust Agreement confirming that he held at 50% interest in the Property for the Plaintiff. Youssef represented that he was the sole owner of the Property.

8Between March 2017 and August 2018 the Plaintiff paid $1,150,000 to improve the Property.

9On August 4, 2021 the Property was sold for $3,172,000 and the proceeds of sale were paid into the trust account of Douglas Hancock who was the solicitor for Youssef and Reem.

10In a Supplementary Trust Agreement dated September 20, 2021 Youssef agreed that the Plaintiff was entitled to $1,159,591.18 from the proceeds of sale.

11On October 6, 2021 the Plaintiff issued the Statement of Claim against Youssef, Reem and their lawyer in the action bearing court file CV-21-00669802-000 (the “Ameer” action). The Ameer action was discontinued against the lawyer.

12The Statement of Defence and Counterclaim of Youssef and Reem in the Ameer action is dated November 30, 2021.

13The Reply and Defence to Counterclaim in the Ameer action is dated December 6, 2021.

14The Plaintiff and Youssef that they would buy and develop a property at 1583 Watersedge Rd, Mississauga (the “Second Property”).

15On Youssef’s instructions, on May 17, 2017 the Plaintiff paid $700,000 to Youssef’s son Bazian and on June 11, 2017 the Plaintiff paid $150,000 to Bazian. The Plaintiff says that Bazian had no interest in either property and he understood that the money paid to him was to be held in trust for the Plaintiff.

16The Plaintiff says that Bazian misappropriated for himself the following amounts:

(i) June 21, 2017 - $477,751.18;

(ii) August 1, 2017 - $50,000.00;

(iii) August 8, 2017 - $150,000.00;

(iv) August 14, 2017 - $10,000.00; and

(v) August 23, 2017 - $100,007.50.

17On March 22, 2023 the Plaintiff issued a claim against Bazian in the action bearing court filed number CV-21-00696618-0000 (the “Bazian Action”).

18The Statement of Defence in the Bazian Action was filed on July 17, 2023.

19On October 7, 2024 Associate Justice Brott ordered that the Amer Action and the Bazian Action be tried together or the Bazian Action immediately after the Amer Action.

POSTIONS OF THE PARTIES

20The Plaintiff says the parties entered into a settlement and the Defendants have not complied with the term. The Plaintiff says that the Defendants have not made the required payments, they have not delivered post-dated cheques as and only Bazian signed the Consent to Judgment .

21Youssef and Bazian do not dispute that there is a binding settlement. They do not dispute that they have not complied with the terms of the settlement. They say that, after the time required to do so, they wired and/or direct deposited some payments to the account of the solicitor for the Plaintiff and the post-dated cheques are “in the mail”. They admit that only Bazian signed the Consent to Judgment.

THE ISSUES

22The issue is whether the Plaintiff is entitled to judgment in accordance with the settlement.

ANALYSIS

23Rule 49.09 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194, provides as follows:

Where a party to an accepted offer to settle fails to comply with the terms of the offer, the other party may,

(a) make a motion to a judge for judgment in the terms of the accepted offer, and the judge may grant judgment accordingly; or

(b) continue the proceeding as if there had been no accepted offer to settle.

24The Amer Action and the Bazian Action were settled.

25On March 11, 2024 Youssef offered to settle the Amer Action and the Bazian action for $250,000. On April 23, 2024 the Plaintiff accept the offer (the “First Settlement”).

26Youssef failed to comply with the First Settlement.

27On February 5, 2025 the parties in the Amer Action and the Bazian action appeared before Stinson J. at a pre-trial conference and reached another settlement which was confirmed in writing (the “Second Settlement”).

28Under the terms of the Second Settlement Youssef, Reem and Bazian agreed to pay $250,000 by way of 25 monthly instalments of $10,000 each commencing on March 1, 2025 by way of postdated cheques. The parties also agreed that the three Defendants would execute a Consent to Judgment in the amount of $250,000 less any payment that had been made, in case the Defendants fail to make any of the monthly payments.

29Only Bazian signed the Consent to Judgment.

30In advance of the trial the Defendants sent a bundle of emails to counsel for the Plaintiff dating between March 3 and April 8, 2025. These emails purport to be exchanged between Youssef and Counsel for the Plaintiff Mr. Shankman whereby Mr. Shankman provides his banking information and requests that the Defendants deposit the payments under the Second Settlement to his bank account (“First Emails).

31The Plaintiff submits that the First Emails are fake. I agree for the following reasons. First, a wire transfer is inconsistent with the terms of the Second Settlement which requires payments by way of post-dated cheques. Second, the First Emails are different from actual emails sent by Mr. Shankman. For example the First Emails which purport to come from Mr. Shankman say they were sent on March 28, at 15:36 whereas Mr. Shankman’s actual emails say “AM” or “PM” and do not show military time. Also Mr. Shankman’s actual emails show only hours and minutes in the time sent, whereas, the First Emails show hours, minutes and seconds. Third, in the First Emails, Mr. Shankman’s banking information is incorrect and shows the wrong bank, the wrong account number and has no SWIFT code.

32The Defendants produced at trial for the first time, a copy of a Transaction Record which shows the deposit of a cheque in the amount of $20,000 into a Bank of Montreal account which the Defendants say is Mr. Shankman’s account. The Defendants also produced at trial for the first time a second bundle of emails dated April 8 and April 10, 2025 which purport to be exchanged between Youssef and Mr. Shankman. I do not accept this evidence. First, a direct deposit is inconsistent with the terms of the Second Settlement requiring post-dated cheques. Second, the account number on the Transaction Record is not Mr. Shankman’s bank account number, Third, it does not make sense that Mr. Shankman would be asking for Youssef’s banking information if Youssef is sending money to Mr. Shankman. Third, it does not make sense that the Defendants would deposit a cheque for $20,000 to Mr. Shankman, if they had already wired the $20,000 owing on March1 and April 1 2025 as they say they did. Finally, Mr. Shankman’s banking records do not show any deposits made.

33I find that the Defendants have not made any payments, they have not provided post dated cheques and Youssef and Reem did not sign the Consent to Judgment.

34I find that the Defendants have not complied with the terms of the Second Settlement and the Plaintiff is entitled to Judgment in accordance with the terms of the Second Settlement.

COSTS

35The Plaintiff seeks costs on a full indemnity scale in the amount of $5,181.00.

36Elevated costs may be warranted in two circumstances. The first circumstance is where, there is an offer to settle under r. 49, and the second is where the unsuccessful party has engaged in behaviour worthy of sanction.

37Where a party has engaged in conduct that is reprehensible, scandalous, or outrageous, a court may sanction this conduct through an award of elevated costs: Davies v. Clarington (Municipality), 2009 ONCA 722, at para. 28; Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p. 134.

38The kind of conduct that justifies elevated costs is not limited to conduct in the proceedings and can include the circumstances that gave rise to the litigation: Mortimer v. Cameron (1994), 1994 CanLII 10998 (ON CA), 17 O.R. (3d) 1 (C.A.), at p. 23, as cited in Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, at para. 43.

39In this case both the conduct in the litigation and the conduct in the action are worthy of the court’s disapproval. In the litigation the Defendants submitted false evidence and, in the action, they deceived the Plaintiff and misappropriated the Plaintiff’s funds.

40The Plaintiff is entitled to costs on an elevated scale.

41I have considered the factors under r. 57.01(1) including the time spent, rates charged, reasonable expectations of the parties, as well as the amount claimed by the Plaintiff. In my view, having regard to all of the factors, I find that the modest amount claimed of $5,181.00 inclusive of HST and disbursements is appropriate.

Merritt J.

Released: April 16, 2025

CITATION: Shakour v. Amer, 2025 ONSC 2344

COURT FILE NO.: CV-21-00669802-000 CV-21-00696618-0000