



COURT OF APPEAL FOR ONTARIO

CITATION: Esfahani v. Samimi, 2018 ONCA 516

DATE: 20180605

DOCKET: C64714

MacPherson, LaForme and Miller JJ.A.

BETWEEN

Djalaleddin Esfahani

Plaintiff (Appellant)

and

Kamran Samimi, Marina Samimi, Danny Aria Samimi,
    Layla Sabet, Shariar Moshtael & Klaus Hartmann

Defendants (Respondents)

Anita Landry and Eric Florjancic, for the appellant

Arnold H. Zweig, for the respondents

Heard: June 4, 2018

On appeal from the
    judgment of Justice Darla A. Wilson of the Superior Court of Justice, dated November
    30, 2017.

REASONS FOR DECISION

Background

[1]

Djalaleddin Esfahani obtained a judgment in Germany against Kamran
    Samimi in 2007. He then obtained a judgment in Ontario recognizing the German
    judgment and its enforceability in the Superior Court (the enforcement
    judgment). Esfahani received no payments and brought an action in 2011
    claiming damages and pleading that the respondents fraudulently conveyed properties
    to evade payment.

[2]

In November 2013 Kamran Samimi filed an assignment in bankruptcy. The
    report of the Trustee in Bankruptcy pursuant to the
Bankruptcy and Insolvency Act,
R.S.C., 1985, c. B-3
,
    (
BIA
) dated July 3,
    2014, was served on Esfahani. He did not file any written opposition to the
    discharge of Kamran who was discharged from bankruptcy on August 7, 2014.

[3]

Also in 2013, Esfahani brought his summary judgment motion but agreed to
    proceed with the motion as a mini trial. The mini trial was to address a single
    issue - whether the respondents engaged in a series of transactions with the
    intent to defeat, delay, hinder or prejudice Esfahani from receiving payment
    from Kamran for the outstanding judgment or enforcing it.

[4]

In March 2015 the mini trial judge answered the issue in the
    affirmative. That is, the respondents did engage in the described conduct. The
    mini trial judge also made several other observations on procedural issues in
    the specific circumstances of this case, which will be referred to later. The
    respondents appeal of the mini trial decision to this court was dismissed:
Esfahani
    v. Samimi
, 2016 ONCA 418.

[5]

In October 2017, the summary judgment motion, originally brought in
    2013, continued.

The Summary Judgment Motion

[6]

On the summary judgment motion, Esfahani relied on the
Fraudulent
    Conveyances Act
, R.S.O. 1990, c. F.29, (
FCA
) and the
Assignment
    and Preferences Act
,
R.S.O. 1990, c. A.33
,
    (
APA
) to recover the
    proceeds of the fraudulent conveyances. He argued that any funds from the
    fraudulent conveyances are imprinted with a trust for him.

[7]

The respondents in turn argued that because Kamran Samimi has been
    discharged from bankruptcy, the debt upon which these proceedings are based has
    also been discharged. That is to say, there is no debt which can form the basis
    of a judgment.

[8]

The motion judge reviewed the decision of the mini trial judge and noted
    that his decision included the observation that: [Esfahani] of course still
    has the simple and direct option of moving under the
Bankruptcy and
    Insolvency Act
to pursue the
FCA
action  She
    noted at para. 15 that:

[Esfahani] commenced a motion in bankruptcy court in December
    2015 seeking to set aside Kamrans discharge and for permission to proceed with
    the bankruptcy proceeding in his own name pursuant to
s. 38
of the
BIA
. However, for
    reasons which remain unclear, the plaintiff chose to abandon it and instead,
    brought the motion before me seeking a judgment against the remaining
    Defendants in damages to the amount of the Nolan judgment

[9]

The core of the motion judges decision is found at para. 23, where she
    concludes:

At the present time, and until a bankruptcy court decides
    otherwise, the judgment debt is discharged. [Esfahani] through this motion
    seeks damages against the other Defendants but there is nothing on which to
    form a basis for a damages claim, since the debt belongs to the trustee, not to
    Kamran.

[10]

The
    motion judge held that Esfahani had failed to follow the correct procedure to
    realize on the amounts owing under the 2009 enforcement judgment. She dismissed
    Esfahanis motion, which he now appeals.

The Issues

[11]

We
    agree with the respondents; the summary judgment is directed at the fraudulent
    conveyance claims and is not a final order. It simply dismissed Esfahani's
    motion for summary judgment with costs to the respondents. In dismissing the
    summary judgment motion, the motion judge did not invoke Rule 20.04(4) or
    20.05(1) and reference the legal determination that the party argues is a
    binding legal determination; that is, the fraudulent conveyance claim: see
Skunk
    v. Ketash
, 2016 ONCA 841, at paras. 35-36. As such, the judgment is an
    interlocutory order appealable to the Divisional Court with leave.

[12]

In
    any case, Esfahani can still pursue his fraudulent conveyance claims in
    Bankruptcy Court, or he can seek leave to appeal the summary judgment in the
    Divisional Court. Esfahani has not been deprived of the substantive right to
    pursue his fraudulent conveyance claim. He has simply chosen not to pursue it in
    the proper forum  the Bankruptcy Court - despite the views expressed by both
    the motion judge and the mini trial judge.

[13]

As
    for Esfahanis conspiracy claim, as the respondents note, the motion judge was
    aware of the claim but made no decision in respect of it. We note this courts
    decision in
Esfahani v. Samimi
, 2016 ONCA 418, which dealt with the
    appeal of the mini trial, and its observation at para. 4:

[T]he material facts pleaded against the appellants could
    arguably support more than one cause of action, including claims regarding
    fraudulent conveyances, fraud or deceit, and civil conspiracy. The
    question to be determined at the mini-trial, as agreed by the parties, was
    fact-driven. The answer to the question posed, and the trial judges factual
    findings supporting that answer, could also arguably ground more than one cause
    of action against the appellants, as well as Kamran Samimi.

[14]

Thus,
    to the extent the conspiracy claim can be separated from the fraudulent
    conveyance claim, Esfahani is free to continue his efforts and carry on with it
    in the Superior Court, as the respondents concede that he can.

[15]

In
    sum, because the order made by the motion judge is interlocutory, as it does
    not determine the substantive rights of the parties, an appeal properly lies in
    the Divisional Court with that courts leave pursuant to s. 19(1)(b) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43. This court may only transfer an
    appeal to the Divisional Court if the appeal does not require leave to appeal
    to that court.

[16]

For these reasons, the appeal is quashed. As agreed,
    costs are to the respondents in the amount of $5,000, inclusive of
    disbursements and HST.

J.C. MacPherson J.A.

H.S. LaForme J.A.

B.W. Miller J.A.


