Taherkhani v. Este

2025 BCSC 375 Taherkhani v. Este

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Taherkhani v. Este, 2025 BCSC 375 Date: 20250221 Docket: E131501 Registry: Vancouver Between: Mehran Taherkhani Claimant And Rosa Donna Este also known as Rosa Donna Taherkhani also known as Donna Este, Mina Esteghamat-Ardakani also known as Mina Estegahamat-Ardakani, Francis Amir Este, 0831295 B.C. Ltd., Vitality Holdings Corp., and John/Jane Doe as Trustee of the Mina Esteghamat-Ardakani Alter Ego Trust No. 1 Respondents - and - Docket: S151066 Registry: Vancouver Between: Rosa Donna Este Plaintiff And Mina Esteghamat-Ardakani also known as Mina Estegahamat-Ardakani, Francis Amir Este and Craig Blackburn Defendants And 0831295 B.C. Ltd. Defendant by way of Counterclaim Before: The Honourable Justice Ahmad Oral Reasons for Judgment The Respondent, appearing in person: R.D. Este Counsel for Mina Esteghamat-Ardakani: E. A. Kirkpatrick (January 20 and 21, 2025) E. Cribb (January 20 and 21, February 21, 2025) K. McEwan, K.C. (February 21, 2025) Counsel for the Claimant: J. Shewfelt Place and Date of Hearing: Vancouver, B.C. January 20-21, 2025 Place and Date of Decision: Vancouver, B.C. January 21, 2025 Place and Date of Judgment: Vancouver, B.C. February 21, 2025 I. Introduction [1] By ex mero motu orders dated July 2 and July 10, 2024, I was assigned as the case management judge in these two actions which are being heard

together. [2] On November 29, 2024, I conducted a case management conference (the "November Conference") at which I made various procedural orders including with respect to the timing of the filing of responses to outstanding applications, the deadlines by which to file and respond to new applications, the hearing of those applications during the week of January 20, 2025, and the dates for examinations for discovery. [3] In accordance with the terms of the order made at the November Conference, on December 23, 2024, Dr. Rosa Donna Este filed an application for my recusal (the "Recusal Application"). [4] The Recusal Application was the first of three applications that were set to be heard the week of January 20, 2025. As the determination of the Recusal Application dictated whether I could continue with the other applications, having reviewed and considered the submissions of the parties, by a memorandum dated January 21, 2025, I advised the parties that I dismissed the Recusal Application, with reasons to follow. [5] These are my reasons. II. Litigation Background [6] These proceedings involve two proceedings, both involving various claims with respect to the ownership of certain properties in West Vancouver and a number of other assets. The first is a family law action commenced by Mehran Taherkhani in May 2013 against Dr. Este (the "Family Action"). The Family Action was

initially concluded by a consent order issued in May 2014. [7] The second action (the "Civil Action") was filed by Dr. Este two years later, in February 2015, against her mother, Mina Esteghamat-Ardakani, her brother Francis Amir Este (now deceased), and Ms. Esteghamat-Ardakani's common law partner, Craig Blackburn. Ms. Esteghamat-Ardakani and Mr. Este filed a counterclaim in the Civil Action. In May 2017, Dr. Este's claim in the Civil Action was dismissed; the counterclaim remains extant. [8] Based on certain findings in the Civil Action, in February 2018, the Family Action was re-opened. Ms. Esteghamat-Ardakani and Mr. Este were added as respondents in that action. [9] In March 2022, the Family Action and the counterclaim in the Civil Action were joined and will be heard together. Prior to my appointment, the actions were case managed by Justice Giaschi who made various procedural orders in May 2024. [10] The November Conference followed that order. [11] Although Dr. Este has, at times, been represented by counsel, most recently, she has been self-represented, including at the November Conference and the Recusal Application. [12] Ms. Esteghamat-Ardakani has been represented variously throughout by Mr. McEwan, Ms. Kirkpatrick and Mr. Cribb, the latter two of whom appeared on behalf of Ms. Esteghamat-Ardakani at the November Conference and on the Recusal Application. III. Legal

Framework [13] In Pereira v. Dexterra Group Inc., 2023 BCCA 201, the Court provided a helpful summary of the principles governing an application for recusal based upon actual or apprehended bias, starting with the principles relating to impartiality at paras. 10 and 11, as follows: [10] Judges are held to the highest standards of impartiality. The protection of the interests of the parties to a case and the administration of justice requires judges to be disqualified if they are biased or if there is a reasonable apprehension that they are biased: [citations omitted]. [11] There is a strong presumption of judicial impartiality that is not easily displaced: Yukon Francophone School Board at para.

25. Judicial impartiality requires judges to approach each case with an open mind, free from inappropriate or undue assumptions: at para. 22. [14] As the Court noted at para. 12 of Pereira: "[t]he strong presumption that judges act impartially means that a party must meet a high burden to prove that a reasonable apprehension of bias exists". [15] The well-established test for reasonable apprehension of bias is set out in Yukon Francophone School Board, Education Area No. 23 v. Yukon (Attorney General), 2015 SCC 25 [Yukon Francophone School Board]: [20] The test for a reasonable apprehension of bias is undisputed and was first articulated by this Court as follows: ... what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. [Citation omitted.] See also: Wewaykum Indian Band v. Canada, 2003 SCC 45 [Wewaykum] at para. 60. [16] A party must meet a high burden to prove that a reasonable apprehension of bias exists. The test is not one based on a very sensitive or scrupulous conscience: Wewaykum at para.

76. In De Cotiis et al. v. De Cotiis et al., 2004 BCSC 117 [De Cotiis], this Court put it this way: [15] the court must concern itself with what a "reasonable" person might apprehend rather than satisfying "the cynical, the capricious, the excessively suspicious, the paranoid or the perfectionist." [17] In Taylor Ventures Ltd. (Trustee of) v. Taylor, 2005 BCCA 350, the Court summarizes the above principles at para. 7 as follows: a) a judge's impartiality is presumed; b) a party arguing for disqualification must establish that the circumstances justify a finding that the judge must be disqualified; c) the criterion of disqualification is the reasonable apprehension of bias; d) the question is what would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through, conclude; e) the test for disqualification is not satisfied unless it is proved that the informed, reasonable and right-minded person would think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly; f) the test requires demonstration of serious grounds on which to base the apprehension; and g) each case must be examined contextually and the inquiry is fact-specific. [18] With those legal principles in mind, I now turn to the issues raised by Dr. Este on this application. IV. Issues [19]

Dr. Este raises several grounds which she argues either demonstrate bias or raise a reasonable apprehension of bias, and support the Recusal Application: a) my former roles within the Law Society of British Columbia's ("LSBC") disciplinary process combined with Mr. McEwan's role as counsel for LSBC; b) Mr. McEwan's role on the Law Society Committee of Relations with the Judiciary; c) the manner in which I was appointed as case management judge; and d) my conduct and determinations at the November Conference. [20] I will describe and address each of those alleged bases in turn. a. My Role in the LSBC's Disciplinary Process [21] As the first ground, Dr. Este points to my former roles as a Bencher of LSBC, member of the LSBC disciplinary and review panels, and member and Chair of the LSBC's Disciplinary Committee. [22] I understand that Mr. McEwan, at times, acts as counsel in LSBC disciplinary proceedings on behalf of both the LSBC and members against whom disciplinary action is taken. Dr. Este identified an instance in 2017 in which Mr. McEwan acted as counsel for the LSBC on a matter for which I chaired a review panel. I pause to note parenthetically that, prior to this application, I had no recollection of Mr. McEwan's role in that matter. [23] Dr. Este alleges that those respective roles in the LSBC's disciplinary process, and, specifically, having "served together as Members

involved in the Disciplinary process of the [LSBC] at the same time, when Mr. McEwan was representing Mina," gives rise to an apprehension of bias. [24] Dr. Este's understanding of the respective roles, and my alleged interaction with Mr. McEwan as a result of those roles, is misconceived. [25] The role of an adjudicator on the LSBC disciplinary and review panels vis-à-vis counsel (whether acting for the LSBC or the lawyer) is no different than the relationship between a justice of this Court and counsel who appear before them. An informed person, viewing the matter realistically and practically, would not conclude that a lawyer's appearance before an adjudicator (be it on a LSBC disciplinary or review panel or in Court) should preclude the adjudicator from hearing any other matter involving the same lawyer. I can ascertain no objective basis on which a reasonable apprehension of bias can be made out by that circumstance. [26] Second, Dr. Este argues that as a member of the Discipline Committee (as Chair or otherwise), I was made aware of and determined all complaints made against lawyers, including a complaint that she says made, and that was dismissed, against Mr. McEwan. That is not correct. [27] Under the Law Society Rules, complaints against lawyers are made to the Executive Director of the LSBC; it is the Executive Director's responsibility to consider those complaints.

It is not the role of the Discipline Committee or its Chair: Rules 3-2 and 3-4(1). [28] It is also the role of the Executive Director, not the Discipline Committee or its Chair, to investigate or otherwise determine all complaints: Rules 3-5(1) and (3), 3-8(1) and (2). Only those complaints that the Executive Director does not determine are referred to the Discipline Committee: Rule 3-8(3). [29] Dr. Este did not provide any sworn evidence regarding her complaint against Mr. McEwan. For the purpose of this application, I accept that she did make such a complaint. However, it is impossible to know what stage her complaint against Mr. McEwan reached. The fact that her complaint against Mr. McEwan was, in her words, "ignored" suggests that it was determined at an early stage in the complaint process. It would not have come to my attention as a member of the Discipline Committee or its Chair. To the best of my recollection, it did not, nor did I have any role in its dismissal or other determination. [30] Dr. Este's final argument in this category is also based on a wholly erroneous assumption. In particular, Dr. Este baldly asserts that Mr. McEwan and I "were part of the same meetings and had, at the very least a working collegial relationship". There is simply no basis in fact for this assertion. [31] Dr. Este's erroneous and unsubstantiated assumptions cannot form the basis of any

apprehension of bias. [32] In any event, to the extent that there was any overlap in my and Mr. McEwan's roles with the LSBC disciplinary process, my involvement came to an end in September 2020, almost four and a half years ago. Notably, as noted in Carbone v. McMahon, 2017 ABCA 384 at para. 99, the Canadian Judicial Council has accepted 2, 3, or 5 years, as established by local tradition, as a "cooling off period" for a judge to hear former law partners or associates. [33] Especially in light of those guideposts in respect of a significantly closer relationship, in my view, a reasonable and informed person would not conclude that my involvement with the LSBC almost four and a half years ago gives rise to a reasonable apprehension of bias. b. Mr. McEwan's Role on the LSBC Committee of Relations with the Judiciary [34] As a second issue, Dr. Este asserts that Mr. McEwan sits as a member of the LSBC's Committee of Relations with the Judiciary. Although unsubstantiated, for the purpose of this application, I will assume that to be the case. [35] From what appears to be taken from the LSBC website, in brief, the mandate of that Committee is to: a) at the request of the judiciary, assist lawyers who need emergency assistance in the course of a court proceeding; and b) provide advice and assistance to lawyers who wish to make complaints about judges and, in suitable cases, raise the

complaints directly with the judiciary. [36] Dr. Este argues that the second role raises a conflict of interest, as "judges may be more deferential to Mr. McEwan and his associates". As I understand her argument, it is not the case that Mr. McEwan has made any such complaint in respect of my conduct nor does she argue that I was, in fact, aware of his role on the Committee. (I was not, nor was I even aware of the existence of the Committee). Rather, the argument is that McEwan's role on that Committee alone raises an apprehension of bias. [37] By that argument, every justice of this Court would be precluded from hearing matters on which Mr. McEwan (or, by Dr. Este's argument, his partners and associates) is counsel. Given the strong presumption of impartiality, that outcome is not reasonable. No reasonable and right-minded person would think it was. [38] However, Dr. Este's argument is slightly more nuanced. She argues: The issue is particularly pronounced for newer members of the [B]ench who may be less assured of themselves, more deferential to experienced counsel to begin with, and more concerned about complaints with which Mr. McEwan would deal. [39] She suggests that members of the Committee, including Mr. McEwan, should not appear before "all but the most experienced judges on the [B]ench". I infer that Dr. Este does not include me in that category. [40] In my view, Dr. Este's qualification to the generality of the submission does nothing to assist her position. In that regard, I return to the principle of the assumption of impartiality: "[i]t is the key to our judicial process and must be presumed": Wewaykum at para.

59. There is no basis, in the jurisprudence or otherwise, to suggest that the presumption should be applied on a "sliding scale", with the presumption more strongly held for judges with more experience on the Bench and applied more sparingly to a newer member of the judiciary. In my view, any suggestion to that effect cannot be maintained. [41] In effect, in raising this objection, Dr. Este seeks to "pick and choose" a presider to obtain, in her words, a "more senior judge who can control the behaviour of Mr. McEwan and his team", a plea that was repeated numerous times both in her written and oral submissions. [42] While Dr. Este did not express a preference for, or seek an order for the appointment of, a specific judge (other than her preference that Justice Giaschi continue to preside over the matters), in my view, her submissions are consistent with her attempt to secure a judge of her preference. As the Court noted in De Cotiis at para. 10: a party should not be able to unilaterally choose not to have a matter heard by a particular judge simply because that party would prefer that another judge hear the case. If one party, without sound reason, is able to unilaterally determine that a particular judge will not hear a case, it also tends to bring the administration of justice into disrepute. See also Pereira at para. 16. [43] With only the bare assertion of Mr. McEwan's

role on the Committee, and general implication of Dr. Este's argument on the entire judiciary, no reasonable and informed person, viewing the matter realistically and practically, would conclude that his role gives rise to any apprehension of bias. c. Judicial Assignment by Ex Mero Mortu Order [44] As a third basis, Dr. Este raises the ex mero mortu Order by which I was appointed the case management and trial judge as raising a reasonable apprehension of bias. In brief, she suggests that my appointment to replace Justice Giaschi was made at the instigation of Mr. McEwan, she says using intimidation tactics on the Court, and given what she describes as my "connection to Mr. McEwan" as a "friend and previous colleague". Collectively, those allegations are set out at paras. 12, 49, 50, 53, and 57 of Part 3 of Dr. Este's notice of application. [45] At para. 54 of Part 3, she alleges: There are links between the removal of Justice Giaschi and appointment of Justice Ahmad that are known to Mina's counsel and Associate Chief Justice Holmes [who made the ex mero moto order] but not disclosed to Dr. Este. [46] Remarkably, in her oral submissions, Dr. Este expressly referred to the appointment as made pursuant to a "backdoor request" by Mr. McEwan to the Court. When pressed for evidence or any basis on which to substantiate that allegation, she referred to her "experience" and

"observations" in the courtroom. She provided no further particulars. [47] None of those allegations have any foundation and find no support in the evidentiary record. As I have set out above, some are demonstrably false. [48] Rather, these allegations are based solely on Dr. Este's cynical and suspicious view of the appointment; they are not a conclusion that an informed person, viewing the matter realistically and practically, would make. Dr. Este's unsubstantiated suspicions are a wholly inadequate basis on which to ground an apprehension of bias. [49] In coming to that conclusion, I acknowledge, as Dr. Este states, that the ex mero mortu Order was made without consultation with her. Contrary to her suggestion, it was also made without any consultation with any of the other parties or counsel in these proceedings, as ex mero mortu orders are, as part of the Court's inherent jurisdiction to control its own process. [50] In my view, a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would not conclude that the circumstances of my appointment give rise to an apprehension of bias. d. My Conduct and Orders Made at the Case Management Conference [51] As the final basis for this Recusal Application, Dr. Este raises both my conduct and the orders made at the November Conference. Under this category of

alleged bias, Dr. Este provided examples of what she says are indicative of my partiality against her interest and in favour of Ms. Esteghamat-Ardakani (or, more specifically, Ms. Esteghamat-Ardakani's counsel). They are: a) my alleged reliance on, and preference for, Ms. Esteghamat-Ardakani's counsel to guide the process and to influence the orders to schedule applications for hearing, over the objections of Dr. Este; b) the fact that I did not schedule an application for documents that Dr. Este had filed in May 2022 with the other applications set for hearing the week of January 20, 2025; and c) my interactions with her, particularly as compared to my interactions with other counsel. [52] I will discuss each ground in turn. i. My alleged reliance on Ms. Esteghamat-Ardakani's counsel for the scheduling orders [53] The first issue relates to the orders made at the November Conference, all of which were to set dates for anticipated applications and responses to be filed and to schedule applications for hearing during the week of January 20, 2025. The application scheduling orders were: i. to schedule Ms. Esteghamat-Ardakani's application to set aside a sealing order in an action to which she was not a party, but which she argues involves the subject matter of these actions. Dr. Este objected to my hearing that matter, arguing that it should be heard by the judge who granted the

sealing order; ii. to consider scheduling Mr. Blackburn's application for costs in the Civil Action in light of the fact that the action against him had been determined. Dr. Este objected, arguing that previous judges had already ordered that the application be heard at the end of the proceeding; and iii. to schedule Ms. Esteghamat-Ardakani's outstanding document application first, in advance of Dr. Este's then unfiled Recusal Application. [54] All of those orders simply scheduled the applications for hearing. As I explained to counsel and the parties at the commencement of the November Conference, and at various times throughout, no substantive decisions were made or entertained. The orders do not preclude Dr. Este from making the objections and raising the issues she raised at the November Conference when the applications are heard. She was told as much several times at the November Conference. [55] Scheduling the applications for hearing provides all of the parties, including Dr. Este, to make fulsome argument on the substantive matters raised in the applications. There is no objective basis on which to conclude that scheduling the applications for hearing, even if over the objections of Dr. Este, gives rise to an apprehension of bias. [56] I turn to Dr. Este's complaint that I did not initially schedule her then unfiled recusal application first as an indication of bias.

The transcript of the November Conference provides some insight into that ruling. In respect of that issue, I stated: The application having been filed and the only application, quite frankly, that has been filed to date in these two proceedings will go first. That is the application for documents [filed by Ms. Esteghamat-Ardakani] The next application that will proceed will be the application that will be filed, if it's filed by Dr. Este, for the mental health records and assessment and the recusal application [57] Dr. Este did not file the application for the records and assessment. She did file the Recusal Application. Once filed, by memorandum dated January 14, 2025, I advised the parties that it--that is, the Recusal Application--would proceed first. [58] In the full context, and considering that the Recusal Application did, in fact, proceed first, I cannot conclude that a reasonable and informed person, viewing the matter realistically and practically, would conclude that the scheduling of the Recusal Application was any indication of bias. ii. Scheduling of Dr. Este's May 2022 document application [59] I turn to the second issue raised regarding the November Conference--that I did not schedule a document application that Dr. Este had filed in May 2022 with the other applications that were set for hearing the week of January 20, 2025. [60] Despite being expressly asked at

least two times if there were any specific applications or procedural issues that she wanted heard, Dr. Este did not mention or even refer to that application that had been filed some two and a half years earlier and that had not been contemplated or referred to in Justice Giaschi's May 2024 procedural order. [61] In that context, no reasonable and informed person would conclude my failure to schedule or address that application as indicative of bias. iii. My Conduct at the November Conference [62] Finally, I turn to some specific examples that, in Dr. Este's view, demonstrate my bias. [63] I have reviewed the transcript of the November Conference. I am satisfied that there is no support for the allegations of bias based on my conduct. To the contrary, the transcript reveals that Dr. Este's subjective view of bias is not objectively warranted. That conclusion is demonstrated by a few examples on which her allegations of bias are based. [64] First, Dr. Este notes that I allowed Ms. Kirkpatrick, counsel for Ms. Esteghamat-Ardakani, to proceed at the November Conference first. Dr. Este complains that, by doing so, I gave Ms. Kirkpatrick the first opportunity to provide her version of the events. As Ms. Kirkpatrick had set the November Conference for hearing and had taken concrete steps in furtherance of Justice Giaschi's procedural order, viewed objectively, I am unable to discern

the basis on which that order of speaking demonstrates bias. [65] Dr. Este ignores that, on her objection, I did not refer to a binder of what I assumed to be pleadings and other information regarding the procedural status of the proceedings that Ms. Kirkpatrick had proposed to hand up. Dr. Este's selective recall is one example of her non-objective view of bias. [66] As the second example of bias, Dr. Este points to my use of the conditional word "if" when referring to the date by which the parties would file a response to Dr. Este's then unfiled Recusal Application. The relevant passage from the transcript is as follows: CNSL E. KIRKPATRICK: It's difficult to know, of course, in the abstract whether [the Recusal Application] require[s] a response and, if so, how much, but I expect we could have the responses by January 13th. THE COURT: Okay. Mr. Shewfelt, then it's January 13th if you're going to be filing any response to that. CNL J. SHEWFELT: Yes. That works for us. THE COURT: Thank you. And I anticipate, of course Mr. Zaitsoff, you won't be filing any, but if you do --- CNSL J. ZAITSOFF: Correct.[1] [Added emphasis.] [67] Dr. Este interprets my use of the word "if" as an indication that I did not expect a response because I had already determined that I would be dismissing any recusal application. [68] Given the exchange, there is no objective basis to suggest that the

word "if" was used other than to reflect counsel's uncertainty that a response would be filed. Dr. Este's view is tainted by the cynical lens through which she observes these events. [69] As a third example of bias, Dr. Este refers to a sentence in an exchange in which I refer to "counsel", without also referring to "party". In that exchange, Dr. Este objected to my hearing Ms. Esteghamat-Ardakani's application to set aside a sealing order made in an action to which she was not a party. Ms. Esteghamat-Ardakani argued that action involved the subject matter of these actions. In suggesting that the application ought to be heard (and expressly stating that Ms. Esteghamat-Ardakani might succeed on the application, or she might not), I commented "we are not going to be ready to go [to trial] if counsel is going to be standing up in three months, six months, just before trial, saying 'I didn't get all my documents'". [Added emphasis.] [70] Dr. Este interprets my reference to "counsel", without reference to the word "party", as an indication of my singular concern that counsel, and not she (who does not have counsel), obtain the documents they require for trial. [71] In my view, her nuanced parsing of individual sentences, regardless of context, is not an exercise in which an objective assessor of bias would partake. That is particularly true in this context in which it was counsel

that was seeking the contents of the sealed file. [72] As a final example of alleged bias, Dr. Este made numerous complaints in her oral submissions on the Recusal Application that I had taken notes by typing "everything" that counsel said on behalf of Ms. Esteghamat-Ardakani but did not type everything Dr. Este said. Dr. Este perceived my note-taking as an indication that I relied only on counsel's argument. [73] Dr. Este fails or refuses to recognize that a significant portion of counsel's response submissions were not reduced to writing, which required me to take notes. By contrast, Dr. Este's oral submissions followed her comprehensive written submissions quite closely. Her written submissions ensured that I had an accurate record of her submissions and obviated the need for copious note-taking. [74] In my view, the cynical spin on which Dr. Este put on this innocuous conduct is also indicative of the lens through which she assesses bias. [75] Again, that cynical and suspicious lens is not the basis on which to assess bias or apprehension of bias. Having reviewed the transcript of the November Conference, I am satisfied that no reasonable and informed person would conclude that my conduct or the decisions made at the November Conference (or at the hearing of the Recusal Application) give rise to an apprehension of bias. IV. Conclusion [76] It may well be that Dr. Este has

formed the subjective view that the issues she has raised give rise to a case of bias or an apprehension of bias. It appears that is the case. However, her subjective view, which I have concluded is based largely on unsubstantiated assumptions and allegations and driven by her cynical and suspicious view of the proceedings, is not sufficient to overturn the strong presumption of judicial impartiality. [77] While it would be easy, of course, to simply accede to Dr. Este's subjective view, however unreasonably held, the jurisprudence is clear that a judge must be cautious that they do not too readily recuse themselves. Doing so can bring the administration of justice into disrepute: Skyllar v. The University of British Columbia, 2021 BCSC 1039 at paras. 26-27, aff'd 2022 BCCA 138, citing Lesiczka v. Sahota, 2007 BCSC 479 at paras. 20-21. [78] In light of the findings I have made, and the reasons set out above, the application that I recuse myself from presiding over these proceedings is dismissed. [79] Costs of this application are awarded to Ms. Esteghamat-Ardakani. "Ahmad J." [1] Mr. Zaitsoff, counsel for Mr. Blackburn, had previously advised the Court that, with the exception of his application for costs, his client would not be participating further in the actions.