Mehedi v. 2057161 Ontario Inc. et al., (2014) 325 O.A.C. 178 (CA)

• Judge: Juriansz, J.A.
• Court: Court of Appeal (Ontario)
• Case Date: Wednesday July 30, 2014
• Jurisdiction: Ontario
• Citations: (2014), 325 O.A.C. 178 (CA);2014 ONCA 604

Mehedi v. 2057161 Ont. (2014), 325 O.A.C. 178 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. AU.014

Golam Mehedi (plaintiff/moving party) v. 2057161 Ontario Inc., c.o.b. as Job Success, Dale Smith, M.A. Hameed, and Wendell Lacombe (defendants/responding party)

(M44010; C54018; 2014 ONCA 604)

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

Ontario Court of Appeal

Juriansz, J.A.

August 21, 2014.

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. 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. A Superior Court judge found that Mehedi had to first bring a motion to have the trial judgement 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., held that Mehedi's motion to introduce new evidence should be brought in the Superior Court before a motions judge in the ordinary way.

Practice - Topic 5006

Conduct of trial - General principles - Reopening of trial to hear additional submissions or evidence - [See Practice - Topic 6186].

Practice - Topic 6101

Judgments and orders - Amendment, rescission and variation of judgments and orders - Jurisdiction - [See Practice - Topic 6186].

Practice - Topic 6186

Judgments and orders - Setting aside judgments - Procedure for - 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 - On the basis of this new evidence, Mehedi attempted to reopen his trial pursuant to rule 59.06(2) of the Rules of Civil Procedure - He moved 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., stated that "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. ... 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."

Cases Noticed:

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].

Aristocrat v. Aristocrat et al. (2004), 190 O.A.C. 327; 73 O.R.(3d) 275 (C.A.), refd to. [para. 18].

R. v. Moura - see R. v. Bogiatzis (A.) et al.

R. v. Bogiatzis (A.) et al. (2003), 169 O.A.C. 33; 172 C.C.C.(3d) 340 (C.A.), refd to. [para. 19].

Lac des Mille Lac First Nation v. Viherjoki (1996), 50 C.P.C.(3d) 94 (Ont. Gen. Div.), refd to. [para. 23].

Canada v. Granatile Inc. (2008), 302 D.L.R.(4th) 40 (Ont. Sup. Ct.), refd to. [para. 24].

Tsaoussis v. Baetz (1998), 112 O.A.C. 78; 165 D.L.R.(4th) 268 (C.A.), refd to. [para. 25].

Janjua v. Khan, [2014] O.A.C. Uned. 2; 2014 ONCA 5, refd to. [para. 27].

Al-Sagar (A.H.) & Brothers Engineering Project Co. v. Al-Jabouri (1989), 46 C.P.C.(2d) 69 (Ont. H.C.), refd to. [para. 28].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 59.06(2) [para. 15].

Counsel:

Golam Mehedi, acting in person;

Christopher Stanek, duty counsel for the moving party;

No one appearing for the responding party.

This motion for directions was heard in Chambers on July 30, 2014, before Juriansz, J.A., of the Ontario Court of Appeal, who delivered the following judgment on August 21, 2014.