Aly v. Halal Meat Inc. et al, 2012 ONSC 1933 (CanLII)

CITATION: Aly v. Halal Meat Inc. et al; 2012 ONSC 1933

CITATION: El Feky v. Halal Meat Inc. et al, 2012 ONSC 1934

CITATION: El Feky v. Tohamy, 2012 ONSC1935

COURT FILE NOS.: CV-10-0138-00; CV-11964-00; FS-09-0953-00

DATE: 20120326

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Nashaat Aly et al v. Nader Halal Meat Inc. et al (CV-10-0138-00)

AND:

Naima Mohamed El-Sayed Mohamed El Feky v. Nader Halal Meat Inc. et al (CV 11964-00)

AND:

Naima Mohamed El-Sayed Mohamed El Feky v. Adel Mohamed Tohamy (FS-09-0953-00)

BEFORE: Ricchetti, J.

COUNSEL: Counsel for Ms. El-Feky in FS-09-0953-00 – J. Lagoudis

Counsel for Ms. El-Feky in CV-11-964-00 – J. Polyzogopoulos

Counsel for Mr. Tohamy in all actions – A. Farooq

Counsel for Nader Halal Meat Inc., Tamer Investment Inc. and Nader Fine Food Inc. in all actions – A. Farooq

Counsel for Nader Tohamy and Tamer Tohamy in CV-11-964-00 and CV-10-0138-00 – A. Farooq

Counsel for Nashaat Aly and Taghreed Aly in CV-10-0138-00 – R. Fisher

HEARD: By oral and written submissions

DIRECTIONS

RESPECTIVE POSITIONS
[1] Counsel provided oral and written submissions on the manner in which the consolidated trial should proceed.
[2] Counsel for Mr. Adel Tohamy, Mr. Nader Tohamy and Mr. Tamer Tohamy submitted the trial should proceed to try the issues in the following order:
i. Determine whether the Alys have and, if necessary, the extent of the Alys’ interest in the properties and the Companies;

ii. Determine the validity and enforceability of the separation agreements including whether Ms. El-Feky has an interest in the Companies;

iii. Determine whether Ms. El-Feky has a claim for oppression; and

iv. Determine the respective remedies for all parties including costs.

[3] Counsel for Ms. El-Feky submitted the trial should proceed to try the issues in the following order:
i. Determine whether the Alys have and, if necessary, the extent of the Alys’ interest in the properties and the Companies;

ii. Determine the validity and enforceability of the separation agreements;

iii. Determine whether the separation agreements, if enforceable, released Ms. El-Feky’s interest in the Companies;

iv. Determine the respective percentage of all the parties’ interest in the Companies;

v. Determine whether Ms. El-Feky was oppressed;

vi. Determine, if necessary, the remedy for the Alys; and

vii. Determine the remedies for Ms. El-Feky.

[4] Counsel for Ms. El-Feky seeks an additional 1-2 weeks to bring any motions.
[5] Counsel for the Alys submits that the trial should proceed in the following order:
i. The Alys’ interest in the properties and Companies and remedies be determined;

ii. The validity of the separation agreements; and

iii. The El-Feky oppression claim;

[6] Simply put, counsel for the Alys wants their issues determined first and then has no further interest in the balance of the issues to be tried. Counsel for the Alys advise they seek to add Ms. El-Feky to the Aly Oppression Action.
DISCUSSION
[7] There is no perfect solution which would permit all of the issues with respect to one party to be dealt with at one time. The claims and remedies are intertwined with the Companies.
[8] I do agree that, to some extent, the various claims to an interest in the properties and Companies can be dealt with in stages and should be dealt with first.
[9] The remedies granted to one party prior to a determination of the claims by other parties would likely limit the potential remedies available to the other parties.
[10] I do not accept Aly’s counsel’s suggestion that the Alys Oppression Action be heard and decided in its entirety first. As stated above, the remedies available to Ms. El-Feky Family Law claims and Oppression claims would be limited by what remedies, financial or declaratory, if any, the Alys would have already been granted by this court. For example, the Alys might seek a financial judgment against the Tohamys or an order transferring their interest in the Companies to the Alys. However, Ms. El-Feky might be entitled to the same relief. In other words, the remedies cannot be fully argued or considered by this court until after all the respective interests in the Companies has been determined. This is particularly so where the Business Corporations Act provides for a wide array of remedies available to an oppressed party. The combinations and permutations of the remedies which might be granted are numerous and potentially conflicting.
[11] While this may cause some additional expense to the Alys to monitor the subsequent portions of the trial, the situation has been caused by them to some extent by not bringing forward or documenting their alleged interest in the Companies arising in the early 1990’s for many years. Had they dealt with their claim prior to 2004 (more than 10 years after their interest allegedly arose), the order of the issues to be tried would not be an issue today.
EXTENSION OF TIME FOR MOTIONS/ DISCLOSURE/ EXAMINATIONS
[12] Except for what I say below, the parties must serve and file all their motions by April 6, 2012 at 4 p.m. There will be no further extension granted to the parties.
[13] With respect to disclosure, if there are any disclosure issues, written demands for the documents requested must be made of opposing counsel by March 30, 2012. A written response must be provided by April 3, 2012 by opposing counsel. A motion, if necessary, must be brought by April 6, 2012.
[14] With respect to any additional questioning or examination for discovery, written demand for an examination or questioning must be made of opposing counsel by March 30, 2012 setting out the areas required to be covered and an estimated length of time required. A written response must be provided by April 3, 2012 by opposing counsel. A motion, if necessary, must be brought by April 6, 2012.
[15] Given that one trial is being held with respect to all the issues in these proceedings and that all parties have an opportunity to participate fully in the trial with respect to all issues in the same manner as though each was a party in all proceedings, there is no need for a motion(s) to add any of the existing parties to the individual proceedings. All rulings and judgments in these proceedings will show all three proceedings in the style of cause and be binding on all of the parties named in all three proceedings. That is the effect of my prior ruling ordering that one trial be held in all three proceedings.
[16] Notwithstanding the extension given to counsel, the following motions must still be served and filed by March 28, 2012 at 4 p.m.:
• any amendments to pleadings;

• the motion to remove Messrs’ Simpson Wigle Law LLP; and

• the return of any motion by Ms. El-Feky for funding by the Companies.

THE ORDER THE ISSUES WILL BE TRIED
The Alys claim to an interest in the properties and the Companies
[17] The alleged interest the Alys have in the properties and the Companies will be dealt with first. The Alys will proceed to establish their claim to an interest in the properties/Companies and, if necessary, when the interest arose.
[18] The Alys will adduce evidence on this issue of whether they have a claim in the properties or Companies and, if so, the extent of their claim. All parties will have an opportunity to cross-examine the Alys’ witnesses on this issue.
[19] The remaining parties will be entitled to adduce evidence and cross-examine in the following order:
• Mr. Adel Tohamy;

• Mr. Nader Tohamy;

• Mr. Tamer Tohamy;

• Ms. El-Feky;

[20] This will be followed by any reply evidence by the Alys.
[21] If possible, I will have a decision shortly after the evidence and submissions have been completed as to whether the Alys have an interest in the properties or Companies, and if so what interest they have and when it arose. This will provide a short adjournment to allow the parties to consider their positions and prepare for the next part of the trial.
[22] What remedies the Alys are entitled to as a result of any interest which they may have in the properties or the Companies will not be dealt with at this time. I recognize that some of the evidence might have to be repeated as the evidence may be relevant to the issue of entitlement as well as the appropriate remedies. However, I am satisfied this is the most efficient manner to proceed and necessary in light of the various claims against the Companies.
Ms. El-Feky’s Corporate and FAMILY LAW Claims
[23] The issues to be determined during this phase of the trial are the following:
a) Are the separation agreements valid and enforceable;

b) Subject to any interest the Alys’ may have been found to have, did or does Ms. El-Feky still have an interest in the Companies;

c) Even if there is no entitlement under a) and b), whether any equalization of NFP results in an interest in the Companies;

d) Subject to any interest the Alys’ may have been found to have and if Ms. El-Feky had/has an interest in the Companies, whether there has been oppression on Ms. El-Feky interests; and

e) Claim for support;

[24] Ms. El-Feky will adduce evidence on the above issues. All parties will have an opportunity to cross-examine Ms. El-Feky’s witnesses.
[25] The remaining parties will be entitled to adduce evidence and cross-examine in the following order:

▪ Mr. Adel Tohamy;

▪ Mr. Nader Tohamy;

▪ Mr. Tamer Tohamy;

▪ The Alys;

[26] This will be followed by any reply evidence by Ms. El-Feky.
[27] If possible, I will have a decision shortly after the evidence and submissions have been completed as to whether Ms. El-Feky had or has an interest in the Companies, if so what interest she had or has. This will provide a short adjournment to allow the parties to consider their positions and prepare for the next part of the trial.
Remedies and Costs
[28] Subject to a further order on directions, this part of the trial will be to determine, in light of the prior findings, what remedies should be granted by this court, whether by way of a financial judgment, declaratory relief or other relief under the Business Corporations Act or otherwise.
[29] The order during this part of the trial will be:
• The Alys;

• Ms. El-Feky;

• Mr. Adel Tohamy;

• Mr. Nader Tohamy;

• Mr. Tamer Tohamy;

[30] Each party, in the above order, will be able to present further evidence on the remedies they submit should be granted by this court. Cross-examinations and submissions will also follow the same order.
[31] A separate hearing date after the judgment is released will be held to deal with costs or, alternatively, the parties, if in agreement, can make written submissions on costs.

Ricchetti, J.

Date: March 26, 2012

CITATION: Aly v. Halal Meat Inc. et al; 2012 ONSC 1933

CITATION: El Feky v. Halal Meat Inc. et al, 2012 ONSC 1934

CITATION: El Feky v. Tohamy, 2012 1935

COURT FILE NOS.: CV-10-0138-00; CV-11964-00; FS-09-0953-00

DATE: 20120326

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Nashaat Aly et al v. Nader Halal Meat Inc. et al (CV-10-0138-00)

AND:

Naima Mohamed El-Sayed Mohamed El Feky v. Nader Halal Meat Inc. et al (CV-11964-00)

AND:

Naima Mohamed El-Sayed Mohamed El Feky v. Adel Mohamed Tohamy (FS-09-0953-00)

BEFORE: Ricchetti J.

COUNSEL: Counsel for Ms. El-Feky in FS-09-0953-00– J. Lagoudis

Counsel for Ms. El-Feky in CV-11964-00– J. Polyzogopoulos

Counsel for Mr. Tohamy in all actions – A. Farooq

Counsel for Nader Halal Meat Inc., Tamer Investment Inc. and Nader Fine Food Inc. in all actions – A. Farooq

Counsel for Nader Tohamy and Tamer Tohamy in CV-11964-00 and

CV-10-0138-00 – A. Farooq

Counsel for Nashaat Aly and Taghreed Aly in CV-10-0138-00 – R. Fisher

DIRECTIONS

Ricchetti J.

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