Highrise Pro Holdings Inc. v. Maryoush

2019 BCSC 2482 Highrise Pro Holdings Inc. v. Maryoush

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Highrise Pro Holdings Inc. v. Maryoush, 2019 BCSC 2482 Date: 20190830 Docket: S195384 Registry: Vancouver Between: Highrise Pro Holdings Inc. Plaintiff And: Marwa Amir Maryoush, Khdor Ibrahim, also known as Khodre Ibrahim, also known as Khadar Ibrahim, also known as Khodor Ibrahim, also known as Kodor Ibrahim, also known as Kador Ibrahim, also known as Hidir Ibrahim, Spider Holdings Ltd., Van Pro Solutions Ltd. and Extreme Powerwash Ltd. Defendants And: Marwa Amir Maryoush, Spider Holdings Ltd., Van Pro Solutions Ltd and Extreme Powerwash Ltd. Third Parties Before: Master Elwood Oral Ruling Re Application to Have Two Actions Tried Together In Chambers Counsel for the Plaintiff: J.S. Malik Counsel for the Defendant Marwa Maryoush: L.R. Nambiar Counsel for the Defendants Extreme Power Wash Ltd., Spider Holdings Ltd. and Van Pro Solutions Ltd.: T.S. Brayer Place and Date of Hearing: Vancouver, B.C. August 30, 2019 Place and Date of Ruling: Vancouver, B.C. August 30, 2019 [1] THE COURT: This is an application by one of the defendants in a civil action, Ms. Maryoush, for an order that this action be tried together with a family law action in which Ms. Maryoush is the claimant and Mr. Ibrahim is the respondent. [2] In the family law claim, Ms. Maryoush seeks an order determining Mr. Ibrahim's guideline income and an imputation of

income, and, as part of that claim, various orders, including an order for accounting and tracing of Mr. Ibrahim's interest and income derived from Van Pro Solutions Ltd. and Spider Solutions Ltd. [3] Further, Ms. Maryoush is seeking a declaration that Mr. Ibrahim's interests in certain assets are family property under the Family Law Act, including Highrise Pro Holdings Inc., Spider Holdings Ltd., Spider Solutions Ltd. and a real estate property located at 814 East Hastings Street, among other properties. Ms. Maryoush specifically pleads that the assets of Highrise Pro Holdings Inc. are family property to be divided under the Family Law Act. [4] In the civil action, Highrise Pro Holdings Inc., the shares of which are owned by Malla Cihan, the sister of Mr. Ibrahim, brings a claim against Ms. Maryoush and Mr. Ibrahim as defendants, as well as Spider Holdings Ltd., Van Pro Solutions Ltd. and Extreme Powerwash Ltd. The claim is for unpaid rent on 814 East Hastings Street, one of the properties that Ms. Maryoush alleges to be family property in the family law claim. In a response to the notice of civil claim, Ms. Maryoush as defendant essentially repeats her allegations from the notice of family claim. [5] In Merritt v. Imasco Enterprises Inc. (1992), 2 C.P.C. (3d) 275, Master Muir said this about the test for trial together: There are two questions that must be addressed in an

answer to an application under this rule. First, do common claims, disputes and relationships exist between the parties? This is disclosed by the pleadings. Second, are they so interwoven as to make separate trials at different times before different judges undesirable and fraught with problems and economic expense? [6] Highrise, as plaintiff in the civil claim, submits that the civil claim is not interwoven with the family action. The company submits that the civil action concerns a debt owed for unpaid rent and an unpaid loan. The family law action, on the other hand, concerns matters of child support, spousal support and division of property. This action concerns a simple matter of unpaid debt. The company submits there are no common claims or disputes between this action and the family law action. [7] In my view, the two actions have common claims, disputes and relationships. I do not agree that the actions raise clear and discrete issues. Both actions have at their core a family dispute, which in turn, has at its core the relationship between the former spouses, Ms. Maryoush and Mr. Ibrahim. Ms. Maryoush alleges that Highrise is not arm's length from Mr. Ibrahim and that the civil action is brought by Highrise so as to dissipate Mr. Ibrahim's assets prior to the family law trial. [8] I agree with Highrise that the family law action includes issues that are beyond the scope

of the civil action. However, having the civil action and the family law action tried at the same time or sequentially will not add to the length or complexity of the family law case. This is because the family law claim will involve a forensic accounting that will include the ownership and assets of Highrise in any event. And given that those issues are also raised by Ms. Maryoush in her defence to the civil action, a trial together will save court time. [9] Moreover, it is clear to me, that Mr. Ibrahim's credibility will be a central feature in both actions. Whether Mr. Ibrahim is using Highrise and the civil action commenced by Highrise as a vehicle to dissipate his assets will be an issue in the family law proceeding. Essentially, Ms. Maryoush alleges that the civil action is an abuse of the process of the court. This is a serious allegation that should not be decided in isolation from the family law action. [10] Given the pleadings, and what I find to be the interweaving of the issues between the parties in the two actions and the issue of credibility that runs throughout, it is my view that separate trials at different times before different judges would be highly undesirable and fraught with difficulty. [11] For these reasons, the application is allowed [12] MR. MALIK: Your Honour, I had made a submission about leave to commence summary for ‑‑ bring a summary trial

application. I do not know that I necessarily need it under the civil rules, but I had asked for it in the alternative if you were granting my friend's application. [13] THE COURT: I do not think I should give that leave. The decision should be made by the judge who hears the application. If you bring a summary trial application, as you know, the threshold issue for the judge will be: is it proper to decide this case on affidavit evidence? And part of that determination will be whether the civil action should be tried separately from the family law action, I think. [14] MS. NAMBIAR: Just to add to that, Your Honour's order just made right now sets the trials together. [15] THE COURT: Yes. [16] MS. NAMBIAR: So that is ‑‑ what we have is a viva voce trial. I do not want the record to reflect that my friend now has leave to bring a summary trial. [17] THE COURT: I am not granting that leave. But the actions have not been consolidated. Highrise still has access to the Rules of Court in the civil action. If an application is made for a separate summary trial in the civil action, the chambers judge hearing the summary trial application will need to decide as a threshold issue whether it is appropriate to decide the issue. I am not going to bind the hands of that chambers judge by saying in advance that Highrise has leave to bring the summary trial application. [18] MR. MALIK: And

just to be clear, I mean, because this has been a highly contentious file. My client's not prevented from bringing that application just because the trials are ordered together, he can still bring that application, it is up to the presiding judge to determine whether to hear it or not. That is what I understand Your Honour to be saying. [19] THE COURT: Yes. Quite frankly, however, I think you will face a vigorous argument from the respondent, in light of my decision that the cases are interwoven, that it would be inappropriate for a chambers judge to decide one case in isolation from the other. But I am not making that ruling at this time. I am just saying that the decision will be made by the chambers judge if and when the application is made. And I think you will have an uphill battle in light of my decision. [20] MR. MALIK: You have not made an order for costs, but I assume it is just costs in the cause? [21] THE COURT: Costs in the cause. "Master Elwood"