



COURT OF APPEAL FOR ONTARIO

CITATION: 6443923 Canada Inc. (Zesty Market) v. Kablou, 2017
    ONCA 916

DATE: 20171128

DOCKET: C63480

Sharpe, Epstein and van Rensburg JJ.A.

BETWEEN

6443923 Canada Inc.,
    c.o.b. as Zesty Market

Plaintiff (Appellant)

and

Yashar Kablou

Defendant/Plaintiff by counterclaim

(Respondent)

and

Ali Karimi and
    Nava Vosough

Defendants by
    counterclaim

Eric Lay, for the appellant

Ian B. McBride, for the respondents

Heard: November 23, 2017

On appeal from the order of Justice Calum MacLeod of the
    Superior Court of Justice, dated February 3, 2017

REASONS FOR DECISION


[1]

These civil proceedings follow a
    2011 criminal trial in which a jury found Mr. Karimi, a principal of the
    numbered company appellant in each action, guilty of extortion and criminal
    harassment.  The respondents and a third individual, Mr. Alireza Khodabandeh,
    were the victims of Mr. Karimis crimes. Mr. Karimi defended the criminal
    charges primarily on the basis that the respondents and Mr. Khodabandeh had
    committed theft against his company. In the sentencing judges view, the guilty
    verdict made clear that the jury found no theft had occurred. She imposed a
    sentence that included significant restitution orders in favour of the
    respondents. On April 28, 2014, this court dismissed Mr. Karimis appeal from
    conviction and sentence.

[2]

Following
    his criminal prosecution, Mr. Karimi commenced these actions against the
    respondents, and an action against Mr. Khodabandeh. In each action, Mr. Karimi
    claimed damages for theft.

[3]

On December 1, 2015, Beaudoin J. granted summary judgment dismissing the
    action against Mr. Khodabandeh. On July 11, 2016, this court dismissed Mr.
    Karimis appeal from that decision.  Mr. Karimi sought leave to appeal to the
    Supreme Court.

[4]

The respondents moved for a stay of these proceedings, primarily on the
    basis that the actions were an abuse of process.  In his decision dated
    February 3, 2017, the motion judge accepted the appellants submissions on
    abuse of process and ordered that both actions be temporarily stayed, reasoning
    that they amount to an impermissible collateral attack on the verdict in the
    criminal prosecution. The motion judge ordered that if the Supreme Court
    refused Mr. Karimi leave to appeal this courts July 11, 2016 decision (or
    granted leave and dismissed the appeal), the temporary stay would become
    permanent. The motion judge further provided that Mr. Karimi had to comply with
    the restitution orders from the criminal proceedings as a condition of bringing
    any motion to lift the stay.

[5]

Prior to this appeal being heard, the Supreme Court denied leave to
    appeal this courts July 11, 2016 decision. As a result, the stay ordered by
    the motion judge is now permanent.

[6]

The appellant appeals the motion judges imposition of the stay. His
    primary argument is that the motion judge erred in finding that the actions
    against the respondents amount to a collateral attack on the criminal
    prosecution.  He submits that the jury charge provided the jury a number of
    different routes to a guilty verdict, not all of which involved the conclusion
    that no theft had occurred.  Since it is impossible to know which route the
    jury followed, the appellant submits the motion judge erred in finding that
    these actions constitute a collateral attack on the jurys verdict.

[7]

We disagree with this argument.

[8]

In our view, it was open to the motion judge to conclude that the jury
    in the criminal prosecution found that the alleged thefts did not occur.  The
    sentencing judge in those proceedings, Ratushny J., held that the jury
    implicitly made such a finding.  At para. 125, of her reasons for sentence, she
    reasoned:

It can be said that the Crown proved the absence of any theft. 
    The jury by reason of its guilty verdicts has to be taken to have accepted the
    victims evidence that they were not thieves and that Karimis accusations that
    they were thieves was not a reasonable justification, excuse or lawful
    authority for his crimes of extortion and harassment.

[9]

Ratushny J. went on to observe that the jury heard ample evidence to
    lead them to the conclusion that there had been no theft committed by any of
    the victims or by anyone else.

[10]

The appellant takes issue with relying on Ratushny J.s reasons.  Citing
R. v. Punko
, 2012 SCC 39, [2012] 2 S.C.R. 396, at para. 11, he argues
    that the sentencing judges finding set out above does not constitute a
    judicial determination that the respondents did not steal from him.

[11]

The problem with this submission is that
Punko
addressed the
    application of issue estoppel to criminal proceedings.  Here, the motion judge
    stayed the proceedings on the basis of the abuse of process doctrine, which is
    unencumbered by the specific requirements of concepts such as issue estoppel
Toronto
    (City) v. C.U.P.E., Local 79
, 2003 SCC 63, [2003] 3 S.C.R. 77, at para.
    37.  The doctrine of abuse of process engages the courts inherent jurisdiction
    to prevent the misuse of its procedure in a way that would be manifestly unfair
    to a party before it or would otherwise bring the administration of justice
    into disrepute:
C.U.P.E.
, at para. 37.

[12]

The motion judge explained why these actions amount to an abuse of
    process as follows at para. 8 of his decision:

It would bring the administration of justice into disrepute if
    a man convicted of criminal offences on the basis that he made false
    allegations of theft against these plaintiffs is then permitted to proceed with
    a civil action based on identical allegations. In effect he would be allowed to
    continue the persecution and harassment for which he has just been convicted.

[13]

We agree with that statement.

[14]

We further note that in its July 11, 2016 decision, this court noted
    that Beaudoin J. was entitled to rely on Ratushny J.s reasons for sentence in
    forming his own judgment about the evidence before him on the summary judgment
    motion brought by Mr. Khodabandeh. For similar reasons, it was open to the
    motion judge in this case to take both Beaudoin J.s and Ratushny J.s reasons
    into account.  We note that the motion judge did not suggest that the findings
    in either decision were binding on him.

[15]

The appellant also submits that the motion judge lacked the authority to
    order Mr. Karimi to satisfy the restitution orders from the criminal
    proceedings before seeking to lift the temporary stay. As the Supreme Courts
    denial of leave renders the stay permanent, we need not address this submission

[16]

Accordingly, the appeal is dismissed.

[17]

Costs to the respondents fixed at $13,500 inclusive of disbursements and
    HST.

Robert
    J. Sharpe J.A.

Gloria
    Epstein J.A.

K.
    van Rensburg J.A.


