



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Ghavim v. Jamali,









2014 BCCA 21




Date: 20140122

Docket:
CA040344

Between:

Farideh Ghavim

Respondent

(Claimant)

And

Ali Jamali

Appellant

(Respondent)




Before:



The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Willcock




On appeal from:  An
order of the Supreme Court of British Columbia, dated
September 28, 2012 (
Ghavim v. Jamali
, Vancouver Docket E103039).




The Appellant appeared in person, along with
translator Mohammed Sajedi









Counsel for the Respondent:



R.W. Millen





Place and Date of Hearing:



Vancouver, British
  Columbia

November 29, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 22, 2014









Written Reasons by:





The Honourable Mr. Justice Willcock





Concurred in by:





The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Groberman








Summary:

On summary trial, a
significant amount of income was imputed to the appellant to account for rental
income the appellant was held to be receiving from properties in Tehran. As a
result, the remaining assets of the marriage were transferred to the respondent
as a one-time spousal and child support payment. On appeal, the appellant
argued the matter should have been reset for a full trial, the summary trial
judge departed from established rules of evidence, and the summary trial judge
conducted himself in such a manner as to give rise to a reasonable apprehension
of bias.

Held: appeal allowed. The
combination of different types of interventions by the summary trial judge
created the appearance that the appellant had not received a fair trial.

Reasons for
Judgment of the Honourable Mr. Justice Willcock:

Introduction

[1]

This is an appeal from the following orders made on September 28,
2012 following a summary trial in matrimonial proceedings:

a)

an order that the sum of $32,023.65, then held in trust by the respondents
counsel, be released to the respondent as a one-time lump sum payment of
spousal support;

b)

an order requiring the appellant to pay child support to the respondent
in the amount of $515 per month based on an imputed income of $66,000 per
annum;

c)

an order the appellant pay $29,717 to the respondent to account for
retroactive child support payments for the period of October 1, 2010 to
October 1, 2012 and other special expenses; and

d)

an order
requiring the appellant to pay $32,023.65 as a one-time lump sum spousal
support payment to the respondent.

Background

[2]

The parties were married in Iran on March 8, 1989, and separated in
Canada in 2009. Matrimonial proceedings were commenced in the British Columbia
Supreme Court in September 2010. After some interlocutory proceedings the
respondent brought an application for summary judgment on August 10, 2012.
That application was heard on August 27, 2012 and the summary trial was
adjourned to September 28, 2012, to permit the appellant to retain
counsel. When the summary trial commenced the appellant was self-represented.
The evidence before the summary trial judge consisted of four affidavits, two
sworn by each party.

[3]

The affidavits addressed the property owned by the parties both here and
in Iran, and their respective incomes. The respondent deposed that the parties jointly
own a luxury apartment and a plot of land in Tehrans shopping district; the
value of those two properties is said by the respondent to have been appraised
at a combined value in excess of $1.6 million. She says that the apartment
property generates rental income that she estimates, with the aid of the
appraisers at $7,000 per month.

[4]

The affidavits describe in detail the manner in which the parties and
the court had dealt with the proceeds of the sale of the former matrimonial
home amounting to $255,952.70 prior to the summary trial application.

[5]

In support of her application for summary judgment, the respondent took
the position the appellant had wrongly received a share of the proceeds that
ought to have been held in trust and she was entitled to all of the remaining
family assets in Canada. She argued that it would make no sense to wait until
November 26, 2012, the date upon which the five-day trial was set to
begin, to address the division of assets and her entitlement to child and
spousal support; she argued she had little hope of actually receiving child
support and believed it would be impossible for her to acquire an interest in
the family property in Iran.

[6]

The respondent deposed to the familys lifestyle and to her belief that
tax-free Iranian-generated rental income was the principal means of support that
had been available to the family. She deposed to her belief that the appellant
earned $50,000 or more a year from the rental property in Tehran but that her
children had received no support from their father since the parties separation
and were both working to pay their expenses.

[7]

In response, the appellant swore affidavits on August 24, 2012, and
September 21, 2012. The appellant deposed that he had insufficient time to
prepare for a summary trial. He disputed the respondents evidence with respect
to the value of family assets, the basis for the claim for support, and the
suggestion that he had substantial rental income. He claimed to earn very
little rental income from the Iranian property. He produced a document he
identified as the lease of the Tehran apartment which indicates it is rented
for 500,000 rials per month or, what is said to be CAD $40. He claimed the
respondent had kept $30,000-$40,000 worth of family jewelry in a safety deposit
box at a bank in West Vancouver.

[8]

The appellant acknowledged receiving approximately $80,000 from the sale
of the family home in 2009 and claimed to have used that money to pay off debts
incurred in the two years before swearing his affidavit. He claimed to have an
annual income of approximately $12,000 and to have debts in excess of $200,000.

[9]

In reply, the respondent noted that the appellant had not produced an
appraisal or evaluation of the Tehran apartment. She deposed to her view the
rental agreement produced was fake. She denied having any jewelry in a safety
deposit box and claimed the appellant had removed gold from the family home.

The Summary Trial

[10]

When the matter came on for hearing in chambers, the respondent was
represented by counsel. The appellant appeared on his own behalf. Mr. Nejat,
formerly acting as counsel for the appellant, appeared by order of the court.
The hearing began with a lengthy review of the manner in which the proceeds of
the sale of the matrimonial home had been dealt with by the parties and their
counsel, and was focused upon the conduct of Mr. Nejat.

[11]

Before addressing the application for summary judgment on its merits,
the judge was harshly critical of the manner in which Mr. Nejat had paid
out funds to his client that ought to have been dealt with only at the
direction of both parties. The  judge was critical of Mr. Nejat appearing
in court to speak to applications founded upon the presumption that he
continued to hold funds in trust, long after he had paid them out to the
appellant. He was critical of Mr. Nejat for seeking to have the respondent
consent to the payment of funds to his client when Mr. Nejat knew he no
longer held those funds in trust. Further, the judge was critical of the manner
in which Mr. Nejat had applied for, and obtained, an order removing
himself as counsel of record, having appeared to have misled the court with
respect to the position taken by the respondents counsel on that application.

[12]

After considering the conduct of the appellants former counsel the
judge considered submissions in support of the respondents application. The
respondent asked the court to impute income of $50,000 per annum to the
appellant. Respondents counsel advised the court that although the appellant
claimed to have income of only $12,000 per annum, he had received rental income
from the Iranian properties during the course of the marriage, which was used
to support the family. The respondent could not quantify the income received,
as it was all received in cash.

[13]

Counsel advised the court the child support for someone earning $50,000 per
year was $458 per month for one child. The needs of the children were described
by counsel; the youngest child of the marriage required dental work, the cost
of which was described in the affidavit material.

[14]

The respondent claimed her own income was $12,000 per annum.

[15]

Counsel for the respondent reviewed the deposits made to the appellants
bank account in 2009 as documented in exhibits to the affidavits: $79,000 in
May and approximately $51,000 in the period from May through to August 2009.

[16]

The judge then questioned the appellant with respect to his occupation,
his employment, his income, his banking, and his assets. The judge asked the
appellant to take off his watch and show it to him and to open his wallet and
tell him how much money it contained. The judge observed that the appellant was
carrying a lot of money for a person with no income. The appellant claimed to
have brought that money to court to pay for his interpreter.

[17]

Initially, upon questioning by the judge, the appellant could not describe
the source of the deposits to his bank account in 2009, other than the $79,000 sum
that he received from his lawyer as proceeds of the sale of the matrimonial
home. When there was some uncertainty or equivocation with respect to how much had
been deposited in the appellants account, the judge asked the appellant to quit
playing games and reminded him that he could be held in contempt. The judge told
the appellant that he found the fact the appellant could not remember where
money deposited in his account in 2009 came from, was hard to believe.

[18]

The judge then questioned the appellant about his property in Tehran. The
appellant estimated the apartments value to be in the range of CAD $200,000-$300,000;
he claimed to receive $50 per month in rent for the apartment. When questioned
with respect to his ability to pay child support, he indicated he has no work
experience in Canada and was not able to earn more than he was making. The
appellant said he had been employed in a number of menial positions, including
newspaper delivery, but claimed to be disabled by what he referred to as heart
issues.

[19]

On further questioning by the judge, the appellant indicated there were
debts of about $250,000 against the apartment in Tehran, leaving little equity
in the property. When the judge suggested to him that if there was only $50,000
equity in the apartment it would be fair to give title to the apartment to the respondent
in return for payment of $25,000, the appellant agreed and the judge suggested
he might make such an order.

Judgment Appealed From

[20]

The judge held there was substantial property (in the apartment) held by
the parties in Iran but that there was a dispute with respect to its value. He
noted the appellant claimed the property was worth $300,000 with a mortgage
against it of about $250,000 and that it brought in rental income of only $50 per
month, while the respondent argued that the property was worth in excess of $1 million
and that it generated rental income of approximately $7,000 per month. The
judge discussed, at length, the history of proceedings and the inappropriate
payment of the proceeds of the sale of the matrimonial home to the appellant by
his counsel, Mr. Nejat.

[21]

The one remaining child of the marriage, born on November 10, 1993,
was to be in the sole custody and guardianship of the respondent.

[22]

The judge was satisfied on the evidence that the respondent had rental
income of approximately $7,000 per month, based on the deposits made to his
account. The judge referenced what the appellant said in court but reached a
conclusion on what he referred to as the balance of the evidence. Weighing
what appears to have been regarded as the appellants testimony, the court
accepted there would be some expenses associated with renting the Iranian property
and found that a reasonable amount of net income to the appellant from the
property would be $4,500 per month, which would generate $54,000 per year in
income. Adding that to his income of $12,000 per year in Canada brought his
income for child support purposes to $66,000 per annum. Child support was
ordered at sum of $515 per month. The arrears in child support from October 1,
2010 to the date of judgment, over 25 months, were held to amount to $12,675.

[23]

The court was satisfied that a dental surgery expense of $4,591 was
required for one of the children and that a tuition payment of $15,000 should
be considered to be a special expense. Given the respondents income of $12,000,
the section 7 expenses were apportioned 85% to the appellant and 15% to
the respondent. The appellant was ordered to pay $12,750 in section 7
expenses. The total arrears in child support, including those expenses, was
held to amount to $29,717. The judge reapportioned the remaining $32,023.65
held in trust by the respondents counsel entirely to the respondent as a
one-time lump-sum spousal support payment. That order was said to be made in
light of the appellant having retained the benefits of the family assets in
Tehran exclusively since separation and was also based on the difference in
income-earning capacity between the parties. There was otherwise no explicit
judgment in relation to the value of family assets or their division. The respondent
was awarded costs on scale B against the appellant throughout.

Issues on Appeal

[24]

The appellant says the judge:

a)

failed to exercise his discretion to direct the respondents counsel to
have the matter reset for a full trial, as originally scheduled, in order to
ensure all issues were fully and properly canvassed;

b)

departed from established rules of evidence and procedure when hearing
from and addressing the appellant; and

c)

conducted
himself in such a manner as to give rise to a reasonable apprehension of bias
and did not bring an impartial mind to bear upon the case.

[25]

The appellant says the manner in which he was questioned by the judge
would suggest to a reasonable person that he was under cross-examination and that
the proceeding did not follow the path of a summary trial. The appellant says
these were marked departures from established rules of evidence and procedure
and, in light of his language difficulties, give rise to a reasonable
apprehension of bias. He says it was wrong of the judge to suggest that he might
order a transfer of the property in Iran to the respondent in exchange for
payment to the appellant of his estimate of the apartments value, when he did
not have the jurisdiction to do so. Last, he says he did not have an
opportunity to make closing submissions other than to answer questions.

[26]

In response, the respondents counsel says there is a strong presumption
of impartiality and a reviewing court should not lightly make a finding that
there is a reasonable apprehension of bias. That apprehension should be
assessed in the context of the trial as a whole. The respondent concedes that trial
fairness may be undermined by interventions but refers to
R. v. Russell,
2011 BCCA
113, and the cases
cited therein, in support of the proposition that fairness must be assessed in
the context of the trial as a whole. In the case at bar, the respondent says
the summary trial must be seen in light of the long and difficult road the
parties took to get there, and the judges familiarity with that arduous
process.

[27]

The respondent says there is no basis in the record for suggesting the 
judge conducted the hearing in anything other than an even-handed and fair
manner. She argues the judge was merely endeavoring to assist the appellant in
presenting his case and to ensure the appellant addressed the evidence on which
any decision in the matter might be based. The respondent acknowledges that the
questioning of the appellant with respect to his watch and the money in his
wallet was unusual but argues that this questioning did not suggest the judge
was prejudging the issues before him, nor did these questions prevent the
appellant from giving his evidence.

[28]

The respondent says that while the judge was very critical of the
appellants former counsel and frustrated by his misconduct, that frustration was
directed only at Mr. Nejat and not at the appellant who, as the respondent
put it, escaped from the hearing without a reprimand by the court. The respondent
says the appellant was given an opportunity to make closing submissions and
submissions on the authenticity of certain evidence led by the respondent, and to
file evidence supporting his arguments in the case. The respondent says the judge
relied on the substantial deposits of cash made into the appellants bank
account and upon sworn testimony from the respondent as evidence upon which he
based his calculation of the appellants income from Iran.

[29]

In response to the submission that, in the circumstances, it was unfair
to proceed with a summary trial, the respondent says the appellant had years to
comply with the requirement that he produce documents setting out his financial
position. Having not done so, it is not open to him to say the judge ought to
have adjourned the trial to permit him to make such disclosure as had been
sought from him over an extensive period of time. The respondent says the
appellants responses to the judge satisfied him that there was no additional
relevant evidence that existed and could be produced. On the whole of the
evidence, the judge was able to find the facts necessary to grant summary
judgment and it was reasonable in the circumstances for him to do so.

Discussion

[30]

The question we must address on this appeal is whether a reasonable
person informed as to what had taken place would be apprehensive that the
appellant did not have a fair trial:
M.G.G. v. C.E.T.
(1994), 98
B.C.L.R. (2d) 102, 8 R.F.L. (4th) 1 (C.A.), per Finch J.A. (as he then
was) at para. 14.

[31]

In
R. v. Russell
, this Court cited with approval the
following passage from
R. v. Stucky
, 2009 ONCA 151 at para. 72:

... [I]t is important to emphasize that no trial is perfect.
Accordingly, the record must be assessed in its totality and the interventions
complained of in a given case must be evaluated cumulatively, not as isolated
occurrences, from the perspective of a reasonable observer present throughout
the trial. As stated by Doherty J.A. in
R. v. Stewart
(1991), 62 C.C.C. (3d) 289 (Ont. C.A.), at p. 320:

It is a question of degree. At some point, incidents which,
considered in isolation, may be excused as regrettable but of no consequence,
combine to create an overall appearance which is incompatible with our
standards of fairness.

[32]

It must be borne
in mind that this appeal is from a summary trial, pursuant to Rule 11-3
(the Rule) of the
Supreme Court Family Rules
(the equivalent of Rule
9-7 of the
Supreme
Court Civil Rules
, previously R. 18A of the
Supreme
Court Rules
). The summary trial rule has been described by this Court as
perhaps one of the most important procedural rules. It reflects the objectives embodied
in the
Rules
: securing the just, speedy, and inexpensive determination
of proceedings on their merits including, so far as is practicable, the consideration
of proportionality. Care must be taken, when summarily determining claims
pursuant to the Rule, to recognize the preeminent objective of determining
cases fairly on their merits. Because judgment on a summary trial will deprive
the parties of a full trial, it is particularly important to observe the
safeguards incorporated in the Rule, which are intended to ensure the proper
attainment of justice. As this Court noted in

Inspiration Management Ltd. v. McDermid St. Lawrence
Ltd.
(1989),

36 B.C.L.R. (2d) 202, [1989] B.C.J.
No. 1003 at 214
:

The procedure prescribed by R. 18A
may not furnish perfect justice in every case, but that elusive and
unattainable goal cannot always be assured even after a conventional trial and
I believe
the safeguards furnished by the rule and the common sense of the
chambers judge
are sufficient for the attainment of justice in any case
likely to be found suitable for this procedure.
Chambers judges should be careful
but not timid in using R. 18A
for the purpose for which it was
intended. [Emphasis added.]

[33]

Judgment pursuant to the Rule is only available where the dispute can be
determined on evidence tendered in the forms specifically enumerated in Rule 11-3(5)
: affidavits; answers to interrogatories; examination for
discovery transcripts; admissions; and expert reports and cross-examination of deponents
ordered pursuant to Rule
11-3(12):
Gichuru v. Pallai
, 2013
BCCA 60.

[34]

The transcript of the proceedings in this case does not, on its
face, appear to be the transcript of a summary trial. At the outset of the
summary trial, no explanation was given to the appellant of the nature of the
application or the preliminary question that must be addressed on a summary
trial: whether the issues raised by the application were suitable for
disposition under the Rule.

[35]

The hearing began with a lengthy review of the manner in which the funds
in trust had been dealt with by Mr. Nejat and his conduct through the
previous hearings before the court. Mr. Nejat was examined by the summary
trial judge with respect to his conduct, that which the court clearly found to
be unprofessional, deserving of rebuke, and calling for the attention of the
Law Society.

[36]

There were brief submissions in support of the application for summary
judgment by the respondents counsel, who summarized the respondents affidavit
evidence.

[37]

After an adjournment, the judge posed questions of the appellant through
an interpreter. The appellant was not asked whether he was prepared to respond
to the case for summary judgment; he was not told he was being called upon to
make submissions; and he was not sworn or affirmed. No order was made pursuant
to Rule 11-3(12) for the cross-examination of either of the deponents. It cannot
have been clear to the appellant whether his answers would be regarded by the
judge as evidence or submissions. The reasons clearly incorporate as evidence
some of the statements made by the appellant in response to questions. His answers
to questions posed by the judge appear to have been relied upon in weighing the
appellants credibility.

[38]

Some of the questioning of the appellant by the judge might have
conveyed the impression the judge disbelieved the appellant or was placing his
authority on the side of the respondent.

[39]

It was suggested to us in argument that the judge was dealing with a
litigant that had difficulty leading his case and that questioning was
necessary to ensure he had raised any issue that ought properly to be
considered on the summary trial. While questioning of a party by a trial judge
is occasionally necessary, in the case at bar it appears that issues were
canvassed in a manner that clearly reflected doubt and scepticism on the part
of the judge. Further, some potentially relevant matters raised by the
appellant were not addressed by the judge. The appellant mentioned heart
issues and claimed his legs require an operation. He claimed to be disabled
but was not asked to explain the disability, to describe his heart problem, or
to explain what kind of operation he required. The questioning does not appear
to have been intended to tease helpful evidence from the appellant or to
clarify his position.

[40]

The appellant was not advised that he might seek leave pursuant to Rule 11-3(12)
to cross-examine the respondent on her affidavit in order to subject her
testimony to equivalent scrutiny. Nor was he advised that he should take
advantage of the opportunity to make closing submissions to the court. He was
certainly not advised that he might urge upon the court alternatives to a
summary judgment. He was not advised that the court was about to give reasons
for judgment at the conclusion of the series of questions posed by the trial
judge. Given the manner in which the hearing proceeded, each of these matters
was of considerable importance to the appellant. Cumulatively, the absence of
such advice raises concerns in the context of this case.

[41]

The appellant may have been aware that the proceedings before the judge
might result in judgment. He also might have been aware a summary trial would
preclude him from having an opportunity to make his case at trial. If so, it is
not because he was so advised by the judge at the hearing and it is not clear
from the record he knew that to be the case.

[42]

The judge was clearly, and rightly, concerned with respect to the conduct
of the appellants former counsel and the manner in which the case had proceeded
before coming to him. There had clearly been disregard for court orders
resulting in significant funds being put out of the reach of the respondent. In
the circumstances, it was understandable that the judge might have sought to
bring an early end to litigation and to give some immediate relief to the
respondent who had long waited for child support and appeared to have been
deprived of an opportunity to claim a larger share of the family assets.
Notwithstanding those facts, it is my view that the manner in which the summary
trial proceeded before the judge was problematic.

[43]

In my view, this is a case where the combination of different types of
intervention by the judge created the appearance of an unfair trial. We are, of
course, not concerned here with whether the appellant was, in fact, prejudiced
by the interventions but whether a reasonably-minded person who had been
present throughout this hearing would consider that the appellant had not had a
fair trial. I am of the view that the judgment in this case should be set aside
and the matter should be remitted to the Supreme Court. In my view, there ought
to be no impediment to the matter coming on for hearing by way of summary trial
and I would grant leave, pursuant to Rule 11-3(16) of the
Supreme Court
Family Rules
, to the respondent to renew the application for summary
judgment in the Supreme Court.

The Honourable Mr. Justice Willcock

I agree:

The Honourable
Mr. Justice Lowry

I agree:

The
Honourable Mr. Justice Groberman


