



COURT OF APPEAL FOR ONTARIO

CITATION: Heidari v. Naghshbandi, 2022 ONCA
    102

DATE: 20220203

DOCKET: C67674 & C67676

DOCKET: C67674

Pepall, Brown and Thorburn JJ.A.

BETWEEN

Shahram Heidari

Plaintiff (Respondent)

and

Bijan Naghshbandi

Defendant (Appellant)

DOCKET: C67676

AND BETWEEN

Bijan Naghshbandi

Defendant / Plaintiff by counterclaim
    (Appellant)

and

Tarra Engineering Inc.
, Shahram Heidari, and Tarra Engineering and Structural Consultants
    Inc.

Plaintiff
/ Defendants
    by counterclaim (Respondents)

Antony
    Niksich, for the appellant Bijan Naghshbandi

Sean Zeitz and James Quigley, for the
    respondents Shahram Heidari, Tarra Engineering Inc., and Tarra Engineering and
    Structural Consultants Inc.

Heard: February 1, 2022 by
    video conference

On appeal from the judgments of Justice Peter
    Bawden of the Superior Court of Justice, dated October 17, 2019 and May 8, 2020.

REASONS FOR DECISION

[1]

The appellant, Bijan Naghshbandi, appeals from
    judgments in two actions involving the collection of debts claimed by the
    respondents, Shahram Heidari and his company, Tarra Engineering Inc. (TEI).

[2]

In the first action,
Heidari v. Naghshbandi
,
    the trial judge ordered the appellant to pay Mr. Heidari $173,544 plus interest
    and costs. In the second action,
Tarra Engineering Inc. v. Naghshbandi
,
    the trial judge ordered the appellant to pay TEI $105,810 plus interests and
    costs and dismissed the appellants counterclaim against Mr. Heidari, TEI, and
    Tarra Engineering and Structural Consultants Inc., another company established
    by Mr. Heidari.

[3]

In essence, the appellant advances five grounds
    of appeal against the judgments.

[4]

First, he submits that the trial judge decided
    the actions against him on a new theory of liability. The appellant maintains
    that the trial judge introduced a joint investment claim that was not pleaded
    and was not the subject of evidence or submissions at trial.

[5]

We do not agree with this submission.

[6]

Mr. Heidari and TEI claimed repayment of money
    lent to the appellant. The appellant denied that any loans were advanced to
    him.

[7]

The trial judge found that Mr. Naghshbandi
    arrived in Canada with few or no resources and relied on loans or capital
    invested by others to support himself. The trial judge did not accept the
    appellants evidence that loans had not been made by Mr. Heidari and accepted
    Mr. Heidaris evidence to the contrary. He properly characterized credibility
    as the central issue at trial. Indeed, the parties agreed that the litigation
    turned on credibility. Although the trial judge had reservations regarding
    certain aspects of Mr. Heidaris testimony
[1]
,
    he found him to be a generally honest man. In contrast, he found the appellant
    to be particularly mendacious. As the trial judge stated at para. 203:

Mr. Naghshbandi's credibility was pitted
    against that of every other witness in this trial. His testimony amounted to a
    series of denials and allegations which were not corroborated by any other
    witness. He was not a credible witness

[8]

While some of the funds had been advanced to the
    appellant for the purposes of a joint investment, they were nonetheless loans
    by Mr. Heidari that were to be repaid by the appellant. The basis for the trial
    judges determination was not a new theory of liability. We see no error in the
    trial judges treatment of this issue.

[9]

Second, the appellant submits that the trial
    judge failed to provide adequate reasons for the appellants liability for the
    debts arising from the joint investments.

[10]

The trial judge gave reasons for decision that
    were 52 pages in length that were then supplemented by additional reasons
    following receipt of further submissions. He explained that the funds were
    advanced so that the appellant could invest in real estate and there were cheques
    and emails that supported his finding. He had to determine in part whether the
    payments were made to the appellant for his sole benefit, for Mr. Heidaris
    sole benefit, or for their joint benefit. He explained why he decided that half
    was for the appellant and half for Mr. Heidari. His reasons, though not
    perfect, justified and explained the result and allowed for appellate review. We
    would not give effect to this ground of appeal.

[11]

Third, the appellant argues that the trial judge
    failed to apply a credit of $149,027 against the damages awarded to Mr.
    Heidari.

[12]

There is no basis for this complaint. Mr.
    Heidari stated in his Reply to a Demand for Particulars that the credit had
    already been deducted from the amount he was claiming. Although the appellant
    amended his Statement of Defence and Counterclaim following receipt of the
    Reply to the Demand for Particulars, he never raised this issue. Understandably
    therefore, the trial judge did not apply any further credit.

[13]

Fourth, the appellant asserts that the trial
    judge misstated the test for an oppression action.

[14]

We disagree. He commenced by addressing whether
    the appellant had status to claim oppression. The appellant had argued that his
    entitlement to relief from oppression was based on being a shareholder of TEI
    when Tarra Engineering and Structural Consultants Inc. was incorporated in 2006
    to carry on TEIs business activities but the trial judge rejected that
    contention. Having done so, it was unnecessary to conduct any further analysis into
    entitlement to an oppression remedy and the applicable test.

[15]

Fifth, the appellant submits that the trial
    judge erred in relying on the testimony of Mr. Zanganeh, TEIs bookkeeper, to
    prove that the appellant had signed away his single share in 2006. The trial
    judge had found Mr. Zanganeh to be unreliable and biased against the appellant.

[16]

The trial judge rejected the appellants
    contention that he had not relinquished his share in 2006 in part because he
    believed Mr. Heidari and disbelieved the appellant. His disbelief was based on
    an extensive examination of the appellants lack of credibility and also the
    evidence of Brian Lindblom, an expert document examiner who positively
    identified the appellants signature on the share transfer document. In
    addition, in 2009, when writing to the Canada Revenue Agency, the appellant
    stated that he remembered signing documents for the purpose of a TEI share
    transfer to Mr. Heidari in 2006. Moreover, as the trial judge found, there was
    no evidence that the appellant ever requested any shareholder meetings after
    October 2006. Even though the trial judge considered Mr. Zanganeh to be
    unreliable, it was open to the trial judge to accept his evidence that he was
    present when the appellant signed the share transfer in the face of the strong
    corroboration offered by all of the other evidence.

[17]

For these reasons, the appeals are dismissed
    with total costs of $40,000 inclusive of disbursements and applicable tax to be
    paid by the appellant to the respondents ($20,000 for each action).

S.E.
    Pepall J.A.

David
    Brown J.A.

J.A.
    Thorburn J.A.





[1]

This included the trial judges very strong impression that
    Mr. Heidari was intentionally not recording his finances correctly in order to
    avoid taxes.


