Mehedi v. 2057161 Ontario Inc. et al., (2015) 339 O.A.C. 394 (CA)

• Judge: Cronk, Lauwers and van Rensburg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 04, 2015
• Jurisdiction: Ontario
• Citations: (2015), 339 O.A.C. 394 (CA);2015 ONCA 670

Mehedi v. 2057161 Ont. (2015), 339 O.A.C. 394 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. OC.004

Golam Mehedi (appellant) v. 2057161 Ontario Inc. (c.o.b. Job Success), M.A. Hameed, Wendell Lacombe and Dale Smith (respondents)

(C59772; 2015 ONCA 670)

Indexed As: Mehedi v. 2057161 Ontario Inc. et al.

Ontario Court of Appeal

Cronk, Lauwers and van Rensburg, JJ.A.

October 6, 2015.

Summary:

Mehedi sued the defendant company (Job Success) and three of its officials, alleging that they defrauded him in a job placement program. Mehedi alleged that the defendants promised that they would find him a job with a salary of $70,000 within two months. That job never materialized. Mehedi sought return of the $3,742 he had paid Job Success and punitive damages to prevent the recurrence of similar behaviour. The trial judge ruled in favour of the defendants, finding that they had not guaranteed Mehedi a job placement. Mehedi's appeal was dismissed. One month later, the CBC broadcasted an episode of Marketplace that purported to expose how a recruitment agency (allegedly the same company as Job Success) exploited vulnerable unemployed people by promising to find them good jobs in exchange for fees. Mehedi attempted to reopen his trial on the basis of this new evidence and also a similar newspaper article. A Superior Court judge found that Mehedi had to first bring a motion to have the trial judgment set aside. A lawyer advised Mehedi that he needed to bring a motion to introduce new evidence before the judge who presided over the trial. That judge declined to hear the motion. Another Superior Court judge ruled that directions had to be sought from the Court of Appeal as a motion to reopen the appeal for the introduction of newly discovered evidence. Mehedi brought a motion for advice and directions respecting 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 Ontario Court of Appeal, per Juriansz, J.A., in a decision reported at (2014), 325 O.A.C. 178, held that Mehedi's motion to introduce new evidence should be brought in the Superior Court before a motions judge in the ordinary way. Mehedi followed the court's directions. The motion judge dismissed the motion. Mehedi appealed.

The Ontario Court of Appeal allowed the appeal, reopened the trial, and remitted the matter to the trial judge for reconsideration in light of the fresh evidence.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - Mehedi sued the defendants for fraud - His action was dismissed by the trial judge and on appeal - One month later, a television show was broadcasted that purported to expose the defendants as fraudsters - The motion judge dismissed the motion, stating "I am not persuaded that this is an appropriate case to exercise my discretion to reopen this matter that had already been tried ... Even if the new evidence was allowed, I do not believe that that would reasonably affect the outcome." - The Ontario Court of Appeal allowed Mehedi's appeal - The motion judge's reasons were inadequate - While he briefly stated what he viewed as the appropriate test, he did not describe the proposed new evidence or relate the test to it - He did not explain why the new evidence failed to meet the test or why it would not "reasonably affect the outcome" given the critical importance of the defendants' trial testimony to the trial judge's decision - See paragraphs 9 and 14.

Practice - Topic 5006

Conduct of trial - General principles - Reopening of trial to hear additional submissions or evidence - Mehedi sued the defendant company (Job Success) and three of its officials, alleging that they defrauded him in a job placement program - Mehedi alleged that the defendants promised that they would find him a job with a salary of $70,000 within two months - That job never materialized - Mehedi sought return of the $3,742 he had paid Job Success and punitive damages to prevent the recurrence of similar behaviour - The trial judge ruled in favour of the defendants, finding that they had not guaranteed Mehedi a job placement - Mehedi's appeal was dismissed - One month later, the CBC broadcasted an episode of Marketplace that purported to expose how a recruitment agency (allegedly the same company as Job Success) exploited vulnerable unemployed people by promising to find them good jobs in exchange for fees - On the basis of this new evidence and a similar newspaper article, Mehedi moved to reopen his trial pursuant to rule 59.06(2) of the Rules of Civil Procedure - The motion judge dismissed the motion - The Ontario Court of Appeal allowed Mehedi's appeal - Mehedi met the test under rule 59.06(2) - The proposed new evidence was not available at the time of the first trial or appeal - Mehedi did not delay in seeking relief - The new evidence was apparently credible and, if accepted, would probably have affected the result at trial as it could serve to undermine the defendants' evidence and bolster Mehedi's evidence - There would be no prejudice to the defendants if the trial were reopened - See paragraphs 13 to 20.

Cases Noticed:

Young v. Tyco International of Canada Ltd. et al., [2008] O.A.C. Uned 670; 2008 ONCA 709, refd to. [para. 12].

R. v. Sheppard (C.) (2002), 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 12].

Diamond Auto Collision Inc. et al. v. Economical Insurance Group (2007), 227 O.A.C. 51; 2007 ONCA 487 (C.A.), refd to. [para. 12].

Barbieri v. Mastronardi et al., [2014] O.A.C. Uned. 383; 2014 ONCA 416, refd to. [para. 12].

Tsaoussis v. Baetz (1998), 112 O.A.C. 78; 41 O.R.(3d) 257 (C.A.), refd to. [para. 13].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.C. 12; 2001 SCC 59, refd to. [para. 16].

Scott v. Cook, [1970] 2 O.R. 769 (H.C.), refd to. [para. 17].

1057854 Ontario Inc. v. Kara Holdings Inc. et al., [2005] O.T.C. Uned. 292 (Sup. Ct.), refd to. [para. 18].

Wesbell Networks Inc. (Receiver of) v. Bell Canada - see BDO Dunwoody Ltd. v. Bell Canada.

BDO Dunwoody Ltd. v. Bell Canada, [2013] O.T.C. Uned. 7814; 2013 ONSC 7814, refd to. [para. 18].

Irving Shipbuilding Inc. v. Schmidt, 2014 ONSC 5069, refd to. [para. 18].

Madock v. Grauer et al., [2010] B.C.T.C. Uned. 1709; 2010 BCSC 1709, refd to. [para. 18].

Ladd v. Marshall, [1954] 1 W.L.R. 1489 (C.A.), refd to. [para. 19].

Janjua v. Khan, [2014] O.A.C. Uned. 2; 2014 ONCA 5, refd to. [para. 21].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 59.06(2) [para. 11].

Counsel:

Golam Mehedi, acting in person;

Ranjan K. Agarwal and Joseph Marcus, appearing as amicus curiae;

Dale Smith, acting in person and as agent for all respondents.

This appeal was heard on September 4, 2015, before Cronk, Lauwers and van Rensburg, JJ.A., of the Ontario Court of Appeal. Lauwers, J.A., delivered the following judgment for the court on October 6, 2015.