CITATION: 2372522 Ontario Inc. v. 176 Ontario Inc., 2018 ONSC 7041
COURT FILE NO.: DC-18-08-00
DATE: 20181123
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
2372522 ONTARIO INC. A/A ZAM ZAM, 8347506 CANADA CORPORATION AKA ZAM ZAM, AND NASSIMA HUDA
Satish Mandalagiri, for the Appellants
Appellants/Defendants
- and -
1761167 ONTARIO INC. o/a BRUNO’S MEAT DISTRIBUTION
Murdoch R. Martyn, for the Respondent
Respondent/Plaintiff
HEARD: November 16, 2018, at Brampton
REASONS FOR JUDGMENT
[On appeal from a Decision of Deputy Judge B. Bobesich of the
Small Claims Court at Brampton dated January 22, 2018]
F. DAWSON J.
[1] The two corporate defendants (“237 Ontario” and “834 Canada”) and their sole director and officer, Nassima Huda, appeal from the decision of Deputy Judge B. Bobesich of the Small Claims Court, dated January 22, 2018. The Deputy Judge granted judgment in favour of the respondent in the amount of $9,453.59 plus pre and post-judgment interest and costs. The trial involved a claim for non-payment for the delivery of meat provided by the plaintiff, operating as Bruno’s meats, to Zam Zam Supermarket in Mississauga. Ms. Huda operated Zam Zam Supermarket through 834 Canada.
[2] Only two witnesses testified at the trial. Bruno Amendola testified about how and when Bruno’s meats supplied product and about the history of payments made and not made. He also testified about communication with and a meeting with Ms. Huda and said that she provided him with cheques from each of 237 Ontario and 834 Canada. He testified that those cheques were provided as payment for past deliveries in the hope that Bruno’s would continue to supply meat to Zam Zam on a COD basis. Mr. Amendola gave fairly detailed evidence, supported by documentation, about which cheques did and did not clear the bank. He also testified that on at least two occasions Ms. Huda made personal promises to pay him.
[3] Ms. Huda was the only other witness to testify. She gave an account which varied considerably from that of Mr. Amendola. She denied that some of the signatures on the cheques relied upon by the plaintiff were hers. She admitted she did sign some of the cheques. However, she acknowledged that Zam Zam Supermarket was supplied with meat by the plaintiff and her evidence confirmed that she had arranged for cheques from both corporate defendants to be provided to Mr. Amendola. This was quite apart from her testimony that, at some point, her corporate cheques were stolen. The evidence showed that she did not report the alleged theft and irregularities concerning the cheques to the bank until about six months after the cheques in question were presented for payment.
[4] In his written judgment the Deputy Judge indicated that he preferred the evidence of Mr. Amendola to that of Ms. Huda. He explained why. He found Mr. Amendola’s evidence to be straightforward. He found the evidence of Ms. Huda to be contradictory, overly complicated and inconsistent with common sense. He noted that she denied receiving the invoices and yet invoice numbers were written on the cheques that the trial judge found she had signed. There were other facts the trial judge referred to which supported his credibility assessment.
[5] Most of the grounds of appeal raised by the appellants are premised on a submission that the trial judge’s factual findings are in error. As presented in the appellants’ factum and in oral argument the appellants essentially ask this court to retry the case. That, of course, is not the role of an appellate court.
[6] I am not persuaded that, with one exception, the trial judge made any palpable error in respect of his findings of fact. In the one instance where I conclude he did make a palpable factual error that error was not overriding. As explained in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at para. 10, both must be demonstrated before an appellate court may intervene on a factual matter.
[7] The trial judge’s credibility assessment that led to all of his critical factual findings was, in my respectful view, reasonable and well supported by the evidence. The appellant has been unable to demonstrate that any errors were made on factual matters, including in respect of credibility assessment, which were both palpable and overriding.
[8] The appellant also submitted that the trial judge erred in awarding judgment against both corporate defendants and against Ms. Huda personally. In the circumstances I do not agree. The evidence established, and the trial judge found, that Ms. Huda caused cheques to be written from both corporations to pay for meat that was supplied by the plaintiff. She did that in order to convince the plaintiff to continue to supply meat to Zam Zam. The trial judge also accepted Mr. Amendola’s evidence that Ms. Huda provided her personal assurance that she would pay him.
[9] In these circumstances it appears to me that the test described in Shoppers Drug Mart Inc. v. 6470360 Canada Inc., 2014 ONCA 85, at para. 43, has been met. Ms. Huda was the sole director and officer of both corporations. The head office of each corporation was her personal residence. She was in sole control and was the only person who would benefit from the activity of the corporations. In that capacity she caused a wrongful act to be done by each company. She caused cheques to be issued from both corporations when there were inadequate funds to cover the cheques. She did that so the plaintiff would continue to supply meat.
[10] Although the trial judge did not specifically advert to the test described in Shoppers Drug Mart, trial judges are presumed to know the law and the trial judge made the required underlying factual findings. Even if I am incorrect on this point, the trial judge made a finding that Ms. Huda personally guaranteed payment. That was a reasonable finding which, on its own, fully supports imposing liability on Ms. Huda.
[11] As previously mentioned, the trial judge did make one palpable factual error. He found that both corporate defendants had the same bank account. Based on the written material from the bank in question that was clearly wrong. However, that error was not of central importance to the trial judge’s conclusion. What was of significance was that both corporations had issued cheques in favour of the plaintiff to pay for meat that had been delivered to Zam Zam. Consequently, I conclude this error was not overriding.
[12] Nor am I persuaded that this factual error impacted the trial judge’s credibility assessment. It is apparent that it was the many other features of the case that quite reasonably led to the trial judge’s adverse credibility finding against Ms. Huda.
[13] For these reasons the appeal is dismissed.
Costs
[14] In my respectful view, it ought to have been apparent from the outset that this appeal was most unlikely to succeed on the basis upon which it was argued. I have also been advised that the respondent provided a written offer to the appellant to settle the appeal, dated May 2, 2018. That offer remained in effect until the commencement of the appeal. In these circumstances I conclude the respondent should be awarded costs on a substantial indemnity basis.
[15] I have reviewed the Costs Outline and Bill of Costs prepared by counsel for the respondent. I find the time expended and fees and disbursements claimed to be reasonable. This appeal required counsel to review the evidence of a two day trial which was highly conflicting in many important details.
[16] I have considered the appellants’ submission that the proportionality principle should lead to a reduction in the costs claimed. In the circumstances I find that principle has limited application as the appellants/defendants are solely responsible for bringing an appeal that had almost no chance of success and yet required counsel for the respondent to do considerable work.
[17] I award costs in favour of the respondent in the amount of $9,369.96 including disbursements and HST.
F. Dawson J.
Released: November 23, 2018
CITATION: 2372522 Ontario Inc. v. 176 Ontario Inc., 2018 ONSC 7041
COURT FILE NO.: DC-18-08-00
DATE: 20181123
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
2372522 ONTARIO INC. A/A ZAM ZAM, 8347506 CANADA CORPORATION AKA ZAM ZAM, AND NASSIMA HUDA
Appellants/Defendants
- and –
1761167 ONTARIO INC. o/a BRUNO’S MEAT DISTRIBUTION
Respondent/Plaintiff
REASONS FOR JUDGMENT
DAWSON J.
Released: November 23, 2018