The following is DRAFT of the Major Nourhaghighi's Winning Factum before the highest court in Ontario

in which Major Nourhaghighi won a case against the most experience Law Firm, Deacon, Spears, Fedson, & Montizambert LLP,

specialist in the Ontario Condominium Act with $1500.00 award of Costs to Major Nourhaghighi

Court File No: M 32976COURT OF APPEAL FOR ONTARIO

BETWEEN:

MAJOR KEYVAN NOURHAGHIGHIApplicant (Responding Party)

-and-CABER MANAGEMENT SERVICES INC. JOHN BEDFORD, JOHN MORIELLI,

LISA BLAIR; METRO TORONTO CONDOMINIUM CORPORATION NO. 935 Respondents (Moving Parties)

RESPONDING PARTY’S FACTUMRule 61.03.1(8)of Rules of Civil Procedure

PART I

STATEMENT OF FACTS

1. The self-represented Responding Party (“Applicant”) admits the allegations contained in Part II

paragraphs 2, 3, 4, 5, 10, 13 of the Moving Parties’ Factum dated October 17, 2005 (hereafter

referred to as the “Respondents’ Factum”).

2. The Applicant denies the allegations contained in paragraphs 1, 6, 7, 8, 9, 11, and

12 of the Respondents’ Factum, as the Counsel omitted the productive facts.

3. The last line of paragraph 1 should be corrected to read: “…respect to two Motions for

adjournments brought by the Respondents”, on October 19, and 22, 2004.

MOVING PARTIES’ MOTION RECORD TAB 6 Respondents’ Notice of Motion pp.57 & 58 p.57: (b)(ii) an Order a adjourning the hearing of the Application, presently

scheduled to be heard on October 22, 2004; (iii) an Order timetable…30 days for Application Record… 30 days Respondents’ material 30 days for examinations … 45 days re-scheduled of Application (c) An Order Extending Time…for serving and filing the motion material…

p. 58: Last line: (4) Rules …3.02(1)-(2) … 2

4. The first and second lines in paragraph 6 should be corrected to read the

following relieves sought by the Applicant in the Notice of Application:

“[…]originally schedule for two hours returnable October 22, 2004, seeking relieves inter alia that: 2. the Respondents cease continuous access to the Applicant’ unit without notice, be required by a

written notice and the Applicant’s written approval have access to his unit. The Respondents be required to repair the water damage cause by the common element.

3. The court provide Directions for Contempt Proceedings against the Respondents for disobeying Orders made by the Court of Appeal for Ontario and Justice Boland;

4. No further proceeding be instituted by the Respondents against the Applicant without leave;5. The Applicant be granted leave for hearing of this application, and the application be heard and

proceeded as an action.“

Mr. Justice Pitt made orders against the Respondents, in accordance to the main relieves sought

in the Notice of Application. The Applicant’s Submissions for Costs before Pitt J. highlighted the

Applicant’s success in his Application entitling him to the award of costs.

“13. There is no doubt that the court granted the most important parts of theApplicant’s relieves that the Applicant sought, such as: (a) The right of entry for repair should not be abused by the police power; (b) The Applicant’s consent for access is essential for entry; (c) the Respondents are liable for mould cleaning;(d) Pitt J ordered that the water damage’s nuisance should be removed by mentioning the “other work” on his judgment: (d) Pitt J also made the Respondents are responsible to repair the drywall ceiling; and (e) they should carry out repairs without charge to the Applicant. He also was successful to get Oral Direction in regard of Contempt proceedings that all satisfying Rule 57.01. (1) for him.

MOVING PARTIES’ MOTION RECORD, TAB 3 Notice of Application, p. 15: 1(a)(b)(d)TAB 14 Amended Reasons For Judgment p. 138:11TAB 17, Applicant’s Submission for Costs, p. 153: para 13

5. Second line in paragraph 7 should be corrected to read that the Respondents: “brought

a motion under Sub-section 140.(4)(b) of the Courts of Justice Act and Rules 1.04(1)-(3), 1.05,

2.01, 2.03, 302(1)(2), 14.09, 16.04, 16.08, 25.11, 37, 38, and 77 of the Rules … asking thirteen

relieves including (c) An Order extending and/or abridging the time for serving and filing the

Motion Material … ”

MOVING PARTIES’ MOTION RECORD TAB 6 Respondents Notice of Motion p. 58: para 4 3

6. The Respondents asked for thirty minutes for their motion. However, Counsel Fedson

argued all day on October 19, 2004. He continued his arguments for adjournments on October 22,

2004 too. The Respondents are claiming $9528.68 for Costs of Motions.

MOVING PARTIES’ MOTION RECORD TAB 16 Bill of Costs p. 144-46

7. The Applicant asked for two hours hearing of his application. The Respondents titled his

application as “Application for Leave” and took three days in contesting with “Application for

Leave”. They asked for three days cross-examinations and filed four Respondents’ Records

containing five transcripts and other materials. They are claiming $22,438.76 for Application: the

total is $31,967.44.

MOVING PARTIES’ MOTION RECORD TAB 16 Bill of Costs p. 144-48 RESPONDING PARTY’S MOTION RECORD Court’s Scheduled Hearing Two Hours p.

8. On June 28, 2004, the Applicant complained of water damage to his kitchen to the

Respondent Belford and asked for prompt repair. Belford replied: “We do not believe to be evident

at this time.” On July 29, 2004, the Applicant sent a notice to the Respondents that if they do not

obey the management contract within seven days, he would move before the court. Soon the

Applicant hired a Home Inspector who reported Safety Hazard due to over one square meter toxic

mould over drywall ceiling. Also an Architect reported of cracks in the Structural slab above the

ceiling, in which the Respondents were/are liable.

MOVING PARTIES’ MOTION RECORD, TAB 4- Affidavit of Major Keyvan Nourhaghighi p. 31, para 18: Home Inspector: “Safety Hazard”, “Toxic Mould” Exhibit “H2”Respondent Belford’s Letter referred to; p. 43, para. 50-L. 5-8; TAB 5-Suppelemenatry Affidavit of Major Keyvan Nourhaghighi, Water Damage on February 15, 2005 Exhibit I inflamed wet paper p. 46, para 2

RESPONDING PARTY’S MOTION RECORD: Endorsement of Madam Justice Boland, p. 2 L13-16 He complained water consistently seeping into kitchen from common… Endorsement of Court of Appeal for Ontario, p. 4, last line: Repairs for which…

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LETTER from Respondent Belford to Applicant Nourhaghighi. p.6Delta Home Insp. Leakage/ Mold must repair immediately, Safety Hazard p. 23AFFIDAVIT of Nima Nourhaghighi …periodic leaking from ceiling p.7, para 6AFFIDAVIT of Mohammed Khatibi “Toxic Mould Attacks” p.15, para 4, line 6-12Exhibit “A” Photograph-Damaged ceiling June 28, 2004-p.16Exhibit “B” four Photographs- Toxic Mould inside Drywall-p.17Exhibit “H” in Application Record: six photographs of damaged Concrete ceiling, hanging insulation-p. 18 Moulds collected by Applicant on 03SEPT04 p. 19Photograph by T. Harris Environmental “Obvious Mould” p. 20; Suden+Kanera Architects Inc. Letter-Dec 22/04:”Numerous hairline cracks inStructural slab above in around the areas of moisture penetration …” p. 21:para 5

9. On August 6, 2004, the Applicant served the Notice of Application.

On September 14, 2004, Counsel Deacon wrote a letter to the Applicant that he would not

accept any service of the Application’s material, as it was “improper process”.

“[…] Court ordered that ‘no further proceeding be instituted by the Respondent, Keyvan Nourhaghighi, in any court;’ We do not have instruction to accept service of any of your applications material on behalf of any of the named respondents and we do not intend to ask for those instructions because your application is an improper process … motion October 19,0 4…to strike out your application…with costs on substantial indemnity basis”.

However, on October 13, 2004 Counsel Deacon sworn Affidavit for an extension of time

did not admit to service of Notice of Application, did not disclose the filing date of Notice

of Appearance to be entitle to receive the Application’s material. Deacon made Oath

contrary to his letter that would not accept the service from the Applicant. The records

indicating Deacon intentionally did not admit service; but Applicant filed Affidavit of Service.

1…I act as corporate counsel for the corporation…4. As solicitor for the corporation we were instructed to enter Appearances for the respondents Caber and John Belford… 8. The corporation has not been served with any prior Application material…October 22, 2004…has not received any affidavit material in support of Application to date…my firm… act for corp….2002”.

RESPONDING PARTY’S MOTION RECORD Deacon’s Letter 14 SEPT04 p.8:Last para NOTICE of Appearance for Belford dated 12OCT04 p. 23AFFIDAVIT Deacon, p.25:4 “When?”; p. 26 Retain2002; p. 27:9 “Improperly”

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10. Counsel Deacon on his letter and Affidavit referred to the Applicant’s Application as

“improper process”. Deacon in his letter emphasized that on “October 19, 2004, three days before

hearing of the Application would ask strike out”. The Respondents’ Factum in paragraph 7:3,4

submitted: “…made an order striking out paragraphs 1(a), 1(b), and 1(c) of Nourhaghighi’s Notice

of Application pursuant to Rule 25.11(c) on the basis the Notice of Application, as drafted

violated…” contrary to Rule 2.02 of the Rules of Civil Procedure;

Rule 2.02: A motion to attack a proceeding or a step, document or order in a proceeding for irregularity shall not be made, except with a Leave of the Court

RESPONDING PARTY’S MOTION RECORD Deacon’s Letter 14 SEPT04 p.8, p.9:para 2: AFFIDAVIT Deacon p. 27:9 “Improperly”

11. Further Counsels Deacon and Fedson relied on Rule 2.01(1), and 2.03 on their Notice

of Motion:

Rule 2.01: A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity,

However, Counsel Deacon asked from the Applicant to file Notice of Abandonment, or would

proceed with a motion to strike out the Application and would seek costs payable by the Applicant

on substantial indemnity basis, when he knew an irregularity does not render the Applicant’s

Application a nullity.

MOVING PARTIES’ MOTION RECORD TAB 6 Respondents Notice of Motion p. 58: para 4

12. Counsels Deacon, Fedson, and Djurdjevac, have given too much weight to a ‘leave’ that

the Applicant was obligated to obtain, though did not disclose their own obligation in law to obtain

a ‘leave’ in attacking to a lawful Application.

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13. The Respondent’s Factum at paragraphs 8, 9 containing destructive facts upon the

following proofs. From July 2004 to October 2004, the Applicant granted numerous accesses to

the Respondents for repair. On October 5, 2004 again the Applicant has given eight days access

to his unit for toxic mould cleaning by professional, as Deacon promised to perform. Therefore, the

Respondents’ allegations that they obtained Justice Ducharme Order are incorrect. The said

Order made in accordance to both parties’ requests. The Order clearly stated that, the Applicant

would consent to such Order.

RESPONDING PARTY’S MOTION RECORD Nourhaghighi’ Letter 05OCT04 p.31Letter from Apple Mechanical to Fedson, p.30, para 3 first and last lines

MOVING PARTIES’ MOTION RECORD TAB 8 Ducharme J Endorsement p.90, para 12:8

14. On October 13, 2004, the same day that Deacon sworn his Affidavit, two plumbers

“Apple Mechanical” attended for inspection to the Applicant’s unit instate of mould specialist. On

October 19, 2004, the Applicant saw that the Respondents delivered the letter of Apple

Mechanical to Counsel Fedson at the courtroom. The said letter was dated same day of “October

19, 2004” addressing “Fedson” instead to address the Property Manager. Fedson, privately,

delivered the said letter to Justice Ducharme and raised his anger toward the Applicant and

encouraged the judge to strike out the Application as Apple Mechanical declared no mould found

in his unit contrary to the Home Inspector’s report.

Further, the Apple Mechanical’s report disclosed in Affidavit of the Property Manager

Respondent Blair is contrary to Justice Pitt’s Order who ordered the Respondents to

RESPONDING PARTY’S MOTION RECORD Delta Home Inspection’s Report p. 13Letter from Apple Mechanical to Fedson, p.30, para 3 first and last lines

MOVING PARTIES’ MOTION RECORD TAB 14 Pitt J Endorsement p.138, para 11:1 TAB 11AFFIDAVIT of Property Manager Blair, p.116,para 27:4 No Mould

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15. Further the Property Manager Respondent Blair refused to clean the mould and repair

the ceiling. She relied in an article at the Toronto Star that it is the Applicant’s duty for the repairs

of his unit. The Applicant presented contractual evidence. He also present ample false “Notice of

Arrears” made by the Respondents for repair his unit in which the Corporation had responsibility.

Justice Pitt made Order against the Respondents to clean the mould and repair the ceiling with no

costs to the Applicant.

MOVING PARTIES’ MOTION RECORD TAB 14 Pitt J Endorsement p.138, para 11:4

16. On October 19, 2004, Counsel Fedson asked for the adjournment of hearing

scheduled for October 22, 2004; he relied on Rule 3.02.

Page 6:17:Fedson:[…] We’re left with not having filed material perhaps and going before a judge ………….Page15:last 3 lines: Ducharme J : Wouldn’t the judge hearing the application be in a better

position at least to determine the issue ..

Further Justice Ducharme repeated that the presiding judge on Friday October 22, 2004 is in

better position to hear their motion. Counsel disregarded the judge’s ruling.

Shockingly, without any Factum or proof, Council Fedson arbitrary commenced attack to the

Application, and falsely emphasized that the Application has been brought under Section 140.

(4)(b) of the Courts of Justice Act :

Ducharme J: And Why is it contrary to the Courts of Justice Act?Fedson: Section 140, I have a copy with me provides that if you ask for relief you cannot ask, sorry

you if you ask for leave to bring a proceeding you cannot ask for any other relief in that application which is exactly what the applicant has done in this case. Section 140 (4)(B) it says that the applicant may not seek any other relief on the application.

Nourhaghighi: OBJECTION!Ducharme J.: You don’t make objections here sir. […]

RESPONDING PARTY’S MOTION RECORD, Excerpts of Transcript October 19, 2004, p.32:17-32; p.33:7-19; p.15:27-32

17. In spite of the Counsel Fedson’s misleading argument, Mr. Justice Ducharme

confirmed that the Applicant’s Application Record and Factum were filed on time.

P. 8: L7 Ducharme J. Okay, so he’s [Applicant] within time?Fedson He’s within time on that.

Ducharme J. So, he’s within time for everything is he not? He hasn’t missed a deadline in terms of FRIDAY application?

P. 9: L23 Fedson We won’t be in position though Your Honour to respond properlywith material tomorrow.

Ducharme J. Oh but that’s really something for you to explain to the judge hearing the application than to me. I mean I have not seen that material. He served it within time.

Transcript of October 19, 2004 pp. 8, and 9

By the word “tomorrow”, Counsel Fedson was referring to October 20, 2004. However, the last

day that the Respondents could file record was October 15th not October 20th. Therefore,

counsel’s statement was incorrect; he was not being frankly with the court.

RESPONDING PARTY MOTION RECORD Transcript-October 19, 2004; pp.58, 59

18. Mr. Justice Ducharme told Council Fedson repeatedly that he should take his motion

on October 22, 2004. However, the council persisted on his motion being heard on the same

day instead. Shockingly, without any Factum or proof, Council Fedson arbitrary commenced

attack to the Application, and falsely emphasized that the Application has been brought under

Section 140. (4)(b) of the Courts of Justice Act :

Ducharme J: And Why is it contrary to the Courts of Justice Act?Fedson: Section 140, I have a copy with me provides that if you ask for relief you cannot ask, sorry

you if you ask for leave to bring a proceeding you cannot ask for any other relief in that application which is exactly what the applicant has done in this case. Section 140 (4)(B) it says that the applicant may not seek any other relief on the application.

Nourhaghighi: OBJECTION!Ducharme J.: You don’t make objections here sir. […]

Transcript of October 19, 2004 Page 10, L7-17:

The Applicant was surprised, because his application was not under section 140. (4)(b):

140. (4)(b) the person making the application for leave may seek the recission of the order made under subsection (1) but may not seek any other relief on the application.

The Notice of Application is prima facie evidence that the recission of the Order made by Mr.

Justice Wilkins was not a relief contrary to the emphasize of Counsel Fedson.

After more than four hours arguments in the Respondents’ irregular motion, finally the

Applicant was successful to satisfy Mr. Justice Ducharme to endorse in his judgment that the

Applicant has strenuously argued that only Section140.(4)(a) applies to him contrary to the

Respondents’ Notice of Motion and the Counsel Fedson’s arguments.

MOVING PARTIES’ MOTION RECORD TAB 3 Notice of Application p. 15-para 1(a)-(e)TAB 6 Notice of Motion p. 58-last line para (4) “Sub-section 140.(4)(b)- Courts of Justice Act TAB 7 Transcript of October 19, 2004, p. 62:30 p. 63: 5 NOT correct; p.63.25-32 judge erred in law; p. 65:15: judge erred in law; p. 67.3-11 Additional errors in transcript: October 22 is correct there are more errors; p.70:26; p. 71, p.72:15;TAB 8 Ducharme J. Endorsement p. 89-para 8

RESPONDING PARTY MOTION RECORD Transcript-October 19, 2004; p. 60:7-17

Page 18, L 6-11 Ducharme J. […] I think that it’s even more so appropriate otherwise we’re goingto put to more cost and expense and rushing to have something ready for the judge on FRIDAY hopefully having it ADJOURNED at waste of time and money on FRIDAY

Page 22, L7 Nourhaghighi: […] From August 5 th , it has been set for October 22 nd .

Page 24, L15 Fedson: …I was just served…Ducharme J: Well, sorry you have lost me there . …he filed without serving it?

19. First line in paragraph 9 should be corrected to read: ”Justice Ducharme obtained the

Applicant’s consent for making the interim order sought by the parties” On February 15, 1996, the

Respondents asked from Justice Boland for access to the Applicant’s unit to perform

constructions. The Applicant submitted that they were abusing the right of entry to harm him. The

learned judge dismissed their application with cost to be paid forthwith, yet the Respondents owe

the costs. On July 15, 1998, this Court heard the Respondents’ appeal and after obtaining the

Applicant’s consent made Order that the Respondents must provide accommodation to him before

repairs. The Respondents did not comply with order.

MOVING PARTIES’ MOTION RECORD TAB 3 Notice of Application p. 15-para 1(a)-(e)

RESPONDING PARTY MOTION RECORD Transcript-October 19, 2004; p. 60:7-17

20. The Respondents’ Factum in paragraph 11 omitted the productive facts, and contains

error of law. It should be corrected to read that: On October 22, 2004, again the “Application”

strangely scheduled before same “motion judge” Ducharme J. Counsel asked for 30 days

adjournment to be able to serve and file the Respondents’ Records. The Applicant opposed and

submitted that would be prejudiced by delay as his family health and safety due to toxic mould in

his unit. Justice Ducharme arbitrary adjourned the Application to February 23, 2005 and made

Order for a one-day hearing. Justice Ducharme confirmed that in person contacted with office and

obtained a one-day hearing. However, on February 23, 2005, the court schedule two hours for

hearing, as originally scheduled.

PART II

POINTS IN THE ISSUE

21. It is respectfully submitted that the solo issue before this Honourable Court:

A. Whether the Respondents raised a concrete question justifying there is a need to ration

scarce judicial resources for the hearing of an appeal for Costs?

The following are the samples of the points in the issue:

(1) Who is liable for the costs of the Respondents’ Motions for three adjournments?

(2) Whether the Respondents comply with four Orders made against them by the Court of Appeal for Ontario, Madam Justice Boland, and Mrs. Justices Pitt and Ducharme? Where are the proofs of complying; or what are the proper and clear explanations for not complying with Orders? Whether the Respondents’ Solicitors have given a proper legal advise to the Respondents, and as the officer of the court respected the Orders and were frankly with judges?

(3) Whether the Respondents’ Solicitors Motion three days before Application hearing is justifiable under the law in wasting the judiciary resources? Where are the proofs that the Respondents were on time in filing their material for the application hearing of October 22, 2004, such as the “Notice of Appearance”, the “Respondents’ Application Record”, the “Respondents’ Factum”, and the Respondents’ Case Book? Where are the proofs that the Respondents were on time in filing their material for motion hearing of October 19, and 22, 2004, such as the “Moving Parties’ FACTUM”, and “Moving Parties Case Book”, the “Moving Parties’ Motion Record|”, and a proper Affidavit that directly addresses the important issues like ‘Stay of a legal proceeding’, ‘Adjournment of an scheduled hearing’ ?

(4) Whether the Respondents’ Solicitors acted professionally, in representing the Respondents, and as the officer of the court?

PART IIIARGUMENT

A. Whether the Respondents rose a concrete question justifying there is a need to ration scarce judicial resources for the hearing of an appeal for Costs?

22. It is respectfully submitted that the answer is the negative. Mr. Justice Pitt exercised his

judicial discretion judicially and judiciously on the basis that the Costs Order was made. It was not

made inter alia, on wrong principles, on a misapprehension of significant facts or in a non-judicial

manner. B. (R.) v. Children's Aid Society of Metropolitan Toronto

23. The Respondents’ Motion brought three days before the hearing of the Application contrary

to Section 138 of the Courts of Justice Act, and Rules 1.04, 38.10 (1)(a) of the Rules Civil

Procedure, which is an abuse of process in nature:

Section 138: As far as possible, multiplicity of legal proceedings shall be avoided.

Rule 1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

Rule 38.10 (1) On the hearing of an application the presiding judge may,(a) grant the relief sought or dismiss or adjourn the application, in whole

or in part with or without terms;

24. The doctrine of abuse of process is somewhat similar to the doctrine of res judicata in

that it also seeks to prevent a multiplicity of proceedings. There is not a good reason for

Respondents’ Motion on October 19, 2004. Reddy v. Oshawa Flying Club

25. Further, the Respondents relied on Rule 2.01(1) of the Rules Civil Procedure, where

Rule 2.02 requires leave of the court in which they failed to obtain it. The proper way to contest

the Applicant’s Application was to appear and argue at the hearing of the Application itself, on

October 22, 2004. David Bull Laboratories v. Pharmacia Inc

26. The Respondents’ Notice of Motion was asking for three adjournments: (a) to file

“Moving Parties Motion Material”; (b) to file “ Respondents’ Application Record, Factum”; (c) to

cross-examine five witnesses and relied on Rule 3.02(1)-(2). The Respondents had seventy

days to file their “Moving parties Motion Material” :

Rule 3.02 (1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just.

6. A motion for an order extending time may be made before or after the expiration of time prescribed.

27. The Respondents knew or ought to have been known that the costs of a motion for an

extension of time shall be borne by the party bringing the motion1. The irregular motions have

resulted in the needless expense to the Applicant of preparing and arguing ‘two days’ in reply;

while application was sat for ‘two hours’ to be heard on its merits.

It is submitted that in the circumstance, it was appropriate and just that the Respondents pay to

the Applicant the costs of motions incurred subsequent to the disposition of the motion to

adjourn which was made on October 19, and 22, 2004. Borowski v. Canada

28. Further, the Respondents’ two Motions for adjournment of a prima facie evidence heath

hazard issue caused a serious prejudice for the Applicant, when they failed to file their

application’s material at the expiry of the limitation period. Aliferis v. Parfeniuk

29. Furthermore, Rule 38.07 (1) instructed that the Respondents should file a Notice of

Appearance forthwith to be entitled to receive any further document in the Application:

Rule 38.07 (1) A respondent who has been served with a notice of application shall forthwith deliver a notice of appearance (Form 38A)

(2) A respondent who has not delivered a notice of appearance is not entitled to,(a) receive notice of any step in the application;(b) receive any further document in the Application, unless

Superscripts1 Rule 410.(2) of the Federal Court Rules, 1998

30. Solicitor Deacon’s Affidavit withholding information that he wrote to the Applicant that

does not have instruction to accept service of Application Record, and would not ask for such

instruction as he misunderstood and misinterpreted that the Application was improper process

by mistake in law-s.140. (4)(b). Therefore the did not had bona fide intention to oppose the

Application by not filing the Notice of Appearance forthwith.

Can. Wool Co. v. Brampton Knitting Mills; R. v. Toronto Magistrates and Faurnier.

39. It is submitted that the further tests for the determination of whether the discretion

exercised judicially and judiciously on the basis that the Costs Order was made is to review the

Notice of Application, Application Record, and the transcript of proceeding before Mr. Justice

Pitt. The learned judge heard the Applicant that the Respondents were in Contempt Orders of

the Ontario Court of Appeal 2, Madam Justice Boland, and given the oral directions for Contempt

Orders as requested in the Notice of Application. Solicitor Deacon’s letter is ignoring to comply

with the Order of this Honourable Court 2.

40. Further, Mr. Justice Pitt heard the Applicant’s submissions that nevertheless the

Respondents are in default of the payment of the Costs Order made by Madam Justice Boland

against the Respondents to be paid forthwith on March 27,1996, which is vexatious conduct in

nature.

41. Furthermore, it was in paragraph 1 of the Applicant’s Submissions for Costs before Mr. Justice Pitt that the Respondents have disobeyed his honour Order for repair, and they are yet did not comply with the part of order expressed as “other work”.

Superscripts2 The Order of the Court of Appeal for Ontario, made on July 29, 1998, file no. C24450

542.

32. It is submitted that the most expeditious and least expensive determination of the

Applicant’s Application, to secure the just, was if the presiding judge on October 22, 2004 was

getting opportunity to hear it on its merits.

40. The Applicant requests the Respondents’ motion for leave to file a notice of appeal be

dismissed with costs, in any event of the cause.

ALL OF WHICH RESPECTFULLY SUBMITTED

Dated in the City of Toronto, in the Province of Ontario This November 3rd, 2005

MAJOR KEYVAN NOURHAGHIGHI608-456 College StreetToronto, OntarioM6G 4A3

Mr. Justice Pitt exercised discretion in utmost level of fairness toward the Respondents by

prejudicing the Applicant excessive costs caused by the Respondents’ motions, cross-

examinations, and over months delays in hearing of his urgent Application.

SCHEDULE A

LIST OF AUTHORITIES REFERRED TO

Paragraph Referred to

Aliferis v. Parfeniuk (1985), 1 C.P.C. (2d) 41, 9 O.A.C. 215 (C.A.)

B. (R.) v. Children's Aid Society of Metropolitan Toronto [1995] 1 S.C.R., 315 ??

Can. Wool Co. v. Brampton Knitting Mills, [1954] O.W.N. 867 (C.A.)

David Bull Laboratories v. Pharmacia Inc. [1995] 1.F.C., 588 ??

Reddy v. Oshawa Flying Club(1992), 11 C.P.C. (3d) 154 (Ont. Gen. Div.)