



COURT OF APPEAL FOR ONTARIO

CITATION: Mehedi v.
    2057161 Ontario Inc. (Job Success), 2014 ONCA 604

DATE: 20140821

DOCKET: M44010 (C54018)

Juriansz J.A. (In Chambers)

BETWEEN

Golam Mehedi

Plaintiff (Moving Party)

and

2057161 Ontario Inc., c.o.b. as Job Success,
Dale Smith
, M.A. Hameed, and Wendell Lacombe

Defendants (
Responding Party
)

Golam Mehedi, acting in person

Christopher Stanek, duty counsel for the moving party

No one appearing for the responding party

Heard: July 30, 2014

On a motion for directions to set aside the order of
    Justice Glenn A. Hainey of the Superior Court of Justice, dated June 23, 2011.

Juriansz J.A.:


[1]

Mr. Mehedi has brought a motion seeking directions with respect to the
    court, the judge and the manner in which to introduce new evidence after final
    judgment at trial and the dismissal of his appeal. The new evidence he tenders
    is a broadcast by the CBC investigative journalism program
Marketplace
that purports to expose the defendants in his action as fraudsters. The
    colourful history of this matter demonstrates Mr. Mehedis tenacity.

[2]

Mr. Mehedi brought an action against 2057161 Ontario Inc., carrying on business
    as Job Success, M.A. Hameed, Wendell Lacombe and Dale Smith, alleging they
    had defrauded him in a job placement program. Dale Smith is the owner of
    2057161 Ontario Inc. Mr. Mehedi testified that Mr. Hameed and Mr. Lacombe
    promised him a job as a project manager with a salary of $70,000. He sought
    return of the $3,742 he paid Job Success and punitive damages to prevent the
    recurrence of similar behaviour. Mr. Hameed and Mr. Lacombe testified, along
    with another Job Success official, Gordon MacKay. All denied that they had
    promised they would find Mr. Mehedi a job.

[3]

After a one day trial, the trial judge ruled in favour of the
    defendants. The trial judge noted that Mr. Mehedis written agreement with Job
    Success was for the provision of professional career development services to
    assist him in finding employment and did not guarantee a job placement. The
    trial judge preferred the evidence of Mr. Hameed and Mr. Lacombe. He said, I
    carefully observed Mr. Hameed and Mr. Lacombe while they testified both in
    chief and under cross-examination and I find them both to be credible witnesses
    and I accept their evidence. He concluded that, on the evidence before the
    court, there is no basis for finding that Job Success or any of the defendants
    made any promises or commitments to Mr. Mehedi that they did not fulfil.

[4]

Mr. Mehedis appeal to the Court of Appeal was dismissed on January 23,
    2012. In a brief endorsement, the court deferred to the trial judges findings
    of fact and credibility.

[5]

On February 17, 2012, the CBC broadcast an episode of
Marketplace
titled Recruitment Rip-off.
Marketplace
, using hidden cameras,
    purports to expose how a recruitment agency, carrying on business as Toronto
    Pathways, exploits vulnerable unemployed persons by promising to find them
    good jobs in exchange for fees. The clients shown in the program are mainly
    unemployed immigrants newly arrived in Canada. The program shows Dale Smith
    acknowledging that Toronto Pathways and Job Success are the same business.
    Mr. Smith, the owner, states, It is the same corporation. Same address. Brand
    marketing is the only reason for the change. Brand marketing just allows a
    fresh market approach. The program states that the company has changed
    business names five times in seven years.

[6]

The program purports to show company officials unequivocally promising
    prospective clients that they will be provided good jobs to induce them to
    enter contracts. The defendant Mr. Lacombe is shown being asked by a
Marketplace
staffer, So youre basically guaranteeing me that Im going to get a job?,
    and responding, Absolutely. And we are very good at it. The witness Mr.
    MacKay is also shown in the program. The program also shows numerous other
    individuals who make essentially the same allegations as Mr. Mehedi.

[7]

Upon learning of the
Marketplace
broadcast, Mr. Mehedi has been
    attempting to reopen his trial. His position is that the defendants are slick
    liars who perjured themselves at trial. He submits that the new evidence
    provides good reason for revisiting the credibility findings made at trial,
    which the trial judge indicated were based on the demeanour of the witnesses.
    The easy and self-assured manner in which Mr. Lacombe responds, Absolutely,
    to the
Marketplace
staffer provides considerable support for Mr.
    Mehedis position.

[8]

Mr. Mehedi has not been successful in having a court hear and determine
    his motion for fresh evidence.

[9]

On March 23, 2012, Mr. Mehedi, acting in person, brought a motion in the
    Superior Court for judgment in his favour based on new evidence. The judges
    handwritten endorsement explained that he must first bring a motion to have
    the trial judgment set aside and suggested that he obtain legal advice
    because it is a difficult motion.

[10]

Mr.
    Mehedi sought advice from counsel, who advised he needed to bring a motion to
    introduce new evidence and that the motion was properly brought before the
    judge who presided over the trial. On October 1, 2012, Mr. Mehedi had counsel
    write a letter to the trial judge asking for dates for the hearing of his
    motion to introduce new evidence. In response, he received a letter from the
    Chief Justices Executive Legal Officer dated October 9, 2012, advising that it
    was inappropriate to communicate with a judge directly, unless directed
    otherwise, and that he ought to schedule a motion through the Court Registry in
    accordance with the rules.

[11]

The
    trial scheduling clerk advised Mr. Mehedi that a motion before the trial judge
    could not be booked as the motion scheduling office was not privy to the
    schedule of specific judges. The clerk advised him to obtain dates directly
    from the trial judges office.

[12]

On
    November 29, 2012, counsel for Mr. Mehedi contacted the trial judges assistant
    to obtain dates for the motion and was advised that the trial judge was sitting
    in criminal court for the foreseeable future. The assistant advised that the
    trial judge suggested Mr. Mehedi bring a motion before a judge of the Superior
    Court for directions and to have a judge assigned to hear the motion to
    introduce new evidence.

[13]

Mr.
    Mehedi brought a motion in the Superior Court on March 27, 2013, which was
    adjourned to September 10, 2013, and then to May 21, 2014. The motion judges
    endorsement, dated May 21, 2014, states, In view of the fact that this matter
    was heard and disposed of by the Court of Appeal, directions should be sought
    from that Court as to a motion to reopen the appeal for the introduction of
    newly discovered evidence.

[14]

Mr.
    Mehedi has now returned to this court seeking advice and direction with
    respect to the court, the judge and the manner in which a motion to introduce
    new evidence after final judgment at trial has been made.

Analysis

[15]

Mr.
    Mehedi seeks to rely on rule 59.06(2) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, which provides as follows:

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.

[16]

In
671122 Ontario Ltd. v. Sagaz Industries Canada Inc
., 2001 SCC 59,
    [2001] 2 S.C.R. 983, the Supreme Court indicated that the discretion to reopen
    the trial is the trial judges. The trial judge is in the best position to
    decide whether fairness dictates that the trial be reopened. The trial judge
    should exercise his or her discretion to reopen the trial sparingly and with
    the greatest care so that fraud and abuse of the [c]ourts processes do not
    result:
Sagaz
, at para. 61.

[17]

In
Sagaz
, however, the trial judge was asked to reopen the trial before
    the appeal, whereas in Mr. Mehedis case, the appeal has already been heard and
    determined.

[18]

In
Aristocrat v. Aristocrat
(2004), 73 O.R. (3d) 275 (C.A.), the moving
    partys appeal to the Court of Appeal and his application for leave to appeal
    to the Supreme Court of Canada had been dismissed, when subsequently he claimed
    he discovered fresh evidence showing that his wife and daughter had induced the
    Court of Appeal to dismiss his appeal by reason of false, fabricated,
    fraudulent and perjured evidence. He brought a motion in the Court of Appeal
    pursuant to rule 59.06(2)(a) to set aside the order dismissing his appeal. The
    matter was eventually heard by a panel of the court, which said at para. 9:

Based upon his oral submissions and his
    response to questions from the court, it is apparent that Mr. Aristocrats main
    concern is to re-open and set aside the original judgment of [the trial judge]
    as a judgment obtained by fraud. In order to accomplish this, he has moved
    under rule 59.06(2)(a). The Court of Appeal has no jurisdiction to hear such a
    motion. Such motions should be brought in the action before a judge of the Superior
    Court.

[19]

The
    court in
Aristocrat
referred to an earlier case,
R. v. Moura
(2003), 172 C.C.C. (3d) 340 (Ont. C.A.), in which Morden J.A. held that a
    motion to set aside an order of the Superior Court, affirmed on appeal, on the
    basis of newly discovered evidence of fraud should be brought in the Superior
    Court.

[20]

The
    rationale of rule 59.06(2)(a) continues to apply even though an appeal has been
    determined. An appeal merely concludes there is no reversible error at trial.
    The rule allows an order to be set aside or varied, not because of any mistake
    in the proceedings, but because it has become apparent that the decision was
    wrong due to fraud or other facts discovered after it was made.

[21]

While
    a motion under rule 59.06(2) must be brought in the Superior Court, it need not
    be brought before the trial judge. This is made clear by rule 37.14(4), which
    provides:

A motion underanyrule to set aside, vary or amend
    an order
[1]
of a judge may be made,

(a) to the judge who made it, at any place; or

(b) to any other judge, at a place determined in
    accordance with rule 37.03.

[22]

Rule
    37.03 merely requires that the motion be brought in the county where the
    proceeding was commenced or to which it has been transferred.

[23]

Case
    law applying rule 59.06(2) confirms that rule 59.06(2) motions may be made to
    the trial [j]udge or to a [j]udge in motions Court:
Lac Des Mille Lacs
    First Nation v. Viherjoki
(1996), 50 C.P.C. (3d) 94 (Ont. C.J. (Gen. Div.)),
    at para. 11.

[24]

Canada
    v. Granitile Inc
. (2008), 302 D.L.R. (4th) 40 (Ont. S.C.) is an example of
    a case where, under rule 59.06(2), a judge of the Superior Court set aside the
    judgment of another trial judge. Molloy J., the trial judge, found in favour of
    the plaintiffs in their action against Canada. Canada brought a rule 59.06(2)
    motion and Lederer J. held a trial on the issue of whether Molloy J.s judgment
    in the plaintiffs favour should be set aside because of the plaintiffs fraud.
    Lederer J. ultimately concluded that Molloy J.s judgment must be set aside.

[25]

In
Tsaoussis (Litigation Guardian of) v. Baetz
(1998), 165 D.L.R. (4th)
    268 (Ont. C.A.), Scott J. granted judgment by approving a settlement on behalf
    of a minor plaintiff. Leitch J., another judge of the Ontario Court (General
    Division), set aside the judgment on the basis of new evidence under rule
    59.06(2). On appeal, the Court of Appeal concluded that Leitch J. erred in
    doing so because the new evidence at issue was available at the time of the
    initial judgment. The Court of Appeal did
not
hold that only Scott J.
    could set aside her own judgment under rule 59.06(2).

[26]

While
    the law does not
require
the trial judge whose judgment is at issue to
    hear the rule 59.06(2) motion, it is
preferable
for the trial judge to
    do so. The trial judge is already familiar with all of the evidence at trial,
    and is well-suited to expeditiously determine whether the alleged fraud or the
    new evidence requires the trial judgment to be set aside.

[27]

In
    a recent chambers decision,
Janjua v. Khan
, 2014 ONCA 5, the appellant,
    who had a rule 59.06(2) motion regarding the trial judgment pending in the
    Superior Court, also sought leave to appeal the trial judgment in the Court of
    Appeal. Lauwers J.A. dismissed the leave application to allow the rule 59.06(2)
    motion to proceed.  He held, at para. 11:

the preferable procedure in these circumstances is to allow
    the process before the Superior Court to unfold.  It would perhaps be
    especially appropriate for [the trial judge] to hear the [rule 59.06(2)] motion
    to set aside her judgment on the basis of the fresh evidence.  She would be in
    a superior position to contextualize the fresh evidence and to direct the trial
    of an issue if so advised.

[28]

In
A.H. Al-Sagar & Brothers Engineering Project Co. v. Al-Jabouri
(1989), 46 C.P.C. (2d) 69 (Ont. H.C.), Sutherland J., while clear that a motion
    under rule 59.06(2) may be brought before any judge in motions court in the
    ordinary way, seems to suggest that the motion should be brought before the
    trial judge where the findings of the trial judge are being called into
    question and the new evidence must be considered along with the evidence that
    was before the trial judge.

[29]

In
    this case, Mr. Mehedi seeks to undermine the credibility findings made by the
    trial judge with the new evidence. However, as the trial judge has already
    declined to hear the motion, Mr. Mehedi must bring his motion before another
    judge in motions court in the ordinary way.

Conclusion

[30]

Regretting
    the inconvenience Mr. Mehedi has encountered, I conclude that his motion to
    introduce new evidence should be brought in the Superior Court before a motions
    judge in the ordinary way.

[31]

In
    the material before me, Mr. Mehedi filed the video and transcript of the
Marketplace
broadcast. He may consider attempting to obtain the entire hidden camera
    interviews with the defendants and retaining counsel to bring the motion.

Addendum regarding Service

[32]

The
    day after this motion was heard and taken on reserve, Mr. Dale Smith telephoned
    the court office to find out if there was a decision on the motion. He claimed
    that he had not been served with the motion. The court clerk advised that the decision
    was on reserve and that Mr. Smith could write a letter to the court stating he
    had not been served and requesting the opportunity to make submissions in
    writing. The court did not receive a letter from him.

[33]

I am satisfied that this motion came to Mr. Smiths attention
    and that he did not take the opportunity to put his position before the court
    in writing. In the circumstances, I validate service of the motion. I also
    order that future service upon him may be made by ordinary mail at the address
    indicated in the affidavit of service of this motion, subject to a further
    order of a court or his serving and filing a different address for service.

R.G. Juriansz J.A.





[1]
Order includes a judgment: see rule 1.03.


