



COURT OF APPEAL FOR ONTARIO

CITATION: Son v. Khan, 2018 ONCA 984

DATE: 20181204

DOCKET: M49834 (C65694)

Lauwers J.A. (In Chambers)

BETWEEN

Young-Hew Son and Young Son

Respondents

and

Daud Ahmad Khan, Fawad Khan and Ishaq Ahmad Khan

Appellants

Daud Ahmad Khan, in person

Fawad Khan, in person

Ishaq Ahmad Khan, not present

David Nuri, for the respondents

Heard: November 28, 2018

REASONS FOR DECISION

[1]

I begin by explaining the context. It would be fair to describe this
    litigation as unduly complex and confused, largely because the appellants are
    floundering in the absence of legal advice. Kurz J. explained the history in
    his decision striking their defences, reported at 2018 ONSC 284. He noted, at
    para. 6:

Unfortunately, the Khan
    Defendants' response exposes one major problem. They have produced virtually no
    evidence to support their claims regarding this motion. All that I am left with
    is evidence of the Plaintiff regarding their obtuseness and unwillingness to
    obey orders. Those orders include documentary production orders, an order to
    attend for cross-examinations, and costs awards. For the reasons that follow I
    find that it is both appropriate and in the interests of justice to invoke the
    exceptional remedy of striking the pleadings of the Khan Defendants.

[2]

Kurz J. added, at para. 97:

Accordingly, I find that allowing
    the Khan Defendants to continue acting in this litigation as if they are not
    bound by court orders would damage respect for the administration of justice in
    Ontario. At some point, enough is enough. I find that now is enough.

[3]

The appellants did not appeal this order.

[4]

There is an appeal scheduled to be heard in this court on February 8,
    2019. It is from the order of Seppi J., dated June 26, 2018, which declared
    that the respondents are vexatious litigants within the meaning of s. 140 of
    the
Courts of Justice Act
 and accordingly may not institute any
    proceeding in any court except by leave of a judge of the Superior Court of Justice.

[5]

The appellants seek a stay of the writ of seizure and sale until the
    appeal is heard on the vexatious litigants order on February 8, 2019. They also
    ask for an order giving them six months time to arrange placement financing to
    pay out the judgments against them that survive any appeal, and they ask that
    the order be made lifting the Certificate of Pending Litigation so that they
    can take out a second mortgage to pay the cost award made by Ricchetti J. They
    note that there are four sick people who live in the house and will have
    nowhere to go if it is sold.

[6]

There are three problems with the request. First, although permission
    from a Superior Court judge was not required for the appellants to appeal the
    order of Seppi J., it was required for them to bring the motion for a stay of
    the writ of seizure and sale. This courts decision in
Attorney General of
    Ontario v. Reyes
,
2017
    ONCA 613 makes it clear that apart from the argument of the appeal of vexatious
    litigant order itself, any motions in that proceeding require leave of a
    Superior Court judge. They did not get permission.

[7]

The second problem is that the appellants seek to stay the execution of
    a writ of seizure and sale that arises in a different proceeding. Ricchetti J. permitted
    a CPL to be registered against the appellants property by order dated November
    2, 2016. He fixed costs in the amount of about $25,000. The order was not
    appealed. The costs order was sent out for execution. The writ of seizure and
    sale was issued on April 11, 2018. By registered mail in September 2018, the
    appellants were advised that the house would be sold to satisfy the costs
    award.

[8]

The courts decision in
Reyes
requires the appellants to obtain
    leave of a Superior Court judge to bring a motion for a stay of the writ of
    seizure and sale. The difficulty with that request for leave is that no appeal
    was brought from the order of Ricchetti J.

[9]

The third problem is that after the pleadings were struck the
    respondents in the appeal obtained a default judgment in the main action from
    Justice Petersen, dated August 14, 2018, which requires the appellants to pay
    about $200,000.  Remarkably, the appellants did not get a copy of the judgment
    until November 23, 2018, as conceded by Mr. Nuri after conferring with his
    principal. The appellants wish to seek leave to appeal the judgment of Petersen
    J., now that they know of its existence. That is also a matter for which they
    require the leave of a Superior Court judge, but do not have it.

[10]

It
    is clear that the vexatious litigants order under appeal to this court is
    hampering any other appeals and the resolution of the basic dispute between the
    parties. In the unusual circumstances of this case I exercise my authority
    under s. 134 (2) and grant a stay of the execution stay of the writ of seizure
    and sale until thirty days after the appeal is heard on the vexatious litigants
    order. The appellants would be well advised to hire a lawyer or get
pro
    bono
assistance.

P. Lauwers J.A.


