10313033 Canada Inc. v. Kechichian et al., 2020 ONSC 1990

COURT FILE NO.: CV-19-79346 DATE: 2020/04/02

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

10313033 CANADA INC. Plaintiff – and – ANTRANIK KECHICHIAN, SANDY KECHICHIAN, ANDREW CHEUNG, CINDY LIN and 7349602 CANADA INC. Defendants AND B E T W E E N: ANTRANIK KECHICHIAN Plaintiff by Counterclaim – and – ESSILOR GROUP CANADA, DANY DRIEGE, ERIC SAVARD, ROSALIE MALO, KAHLED EL-SHIEK, BENOIT FONTAINE, RAHMA HAJAJI, TAMI ABOUBAKARY, RAYMOND CHABOT GRANT THORNTON, 10402621 CANADA INC., MADELEINE BONHOMME, SAMEH MANSOUR, 10366668 CANADA INC. Defendants by Counterclaim

Counsel: Robert P. Hine, for the Plaintiff/Defendants by Counterclaim, 10313033 Canada Inc., Madeleine Bonhomme, and Sameh Mansour Antranik Kechichian, self-represented Defendant/Plaintiff by Counterclaim

HEARD: October 24, 2019

RULING ON MOTION

Introduction

[1] The “Third Party Counterclaim” is at least the eighth proceeding brought by Antranik Kechichian following a series of transactions which saw the ownership of the Laurier Optical franchise system change hands twice. The first change in ownership occurred in 2016 and the second in 2017.

[2] The first change in ownership of Laurier Optical was from a group of companies in which Mr. Kechichian was involved (“the Kechichian Group”) to a group of companies in which Eric Savard was involved (“the Savard Group” and “Savard”, respectively). The second change in ownership was from the Savard Group to the plaintiff in this action, 10313033 Canada Inc. (“103 Canada”).

[3] Mr. Kechichian alleges that, as a result of these transactions, he personally and the Kechichian Group have suffered significant financial losses. He alleges that he suffered these losses as a result of conspiratorial and other conduct on the part of 103 Canada and others. In his counterclaim in this proceeding, Mr. Kechichian seeks damages in excess of $21M.

[4] Three of the Defendants by Counterclaim seek to have the Counterclaim struck out as duplicative of other proceedings, frivolous, vexatious, an abuse of process, and/or a collateral attack on orders made in related proceedings in the Quebec Superior Court of Justice.

Background

[5] “Laurier Optical” is known to the public as a chain of optometry clinics and eye dispensing stores in Ontario and Quebec. The ownership of the Laurier Optical franchise system, including the assets of Laurier Optical, changed hands twice in the previous decade. 103 Canada is the current owner and operator of that franchise system.

[6] In 2016, the Kechichian Group sold all of the tangible and intangible assets of Laurier Optical (“2016 Sale”) to the Savard Group.

[7] The terms of the 2016 Sale included: a purchase price of $18M, with $5.5M paid in cash on closing; that the Savard Group would assume the long-term debts of the franchise system; the Kechichian Group would receive a specified percentage of the Class D shares in one of the Savard Group corporations; and the Savard Group would pay the balance of the purchase price in equal monthly instalments over five years.

[8] In this action, 103 Canada alleges that the terms of the 2016 Sale also included non-competition, non-solicitation, and confidentiality agreements – all in favour of the Savard Group (“the Agreements”). The claims advanced in this action are based, in part, on the Defendants’ alleged breaches of the Agreements.

[9] In May 2017, a number of companies owned or controlled by Savard, including the Savard Group, commenced CCAA proceedings in the Quebec Superior Court of Justice. In those proceedings, the Kechichian Group were unsecured creditors of the Savard Group.

[10] During the CCAA proceedings, Raymond Chabot Grant Thornton LLP (“RCGT”) was judicially appointed as the monitor of the business affairs of the Savard Group (“Monitor”). In the CCAA proceedings, 103 Canada purchased, from the Monitor, both the Ontario Assets and Quebec Assets of Laurier Optical (“the Assets”). The terms of both asset purchase agreements (“Ontario APA” and “Quebec APA”) were approved and authorized by vesting orders obtained by the Monitor from the Quebec Superior Court of Justice (“the Vesting Orders”).

[11] In this action, 103 Canada alleges that under the two APAs, and/or pursuant to an assignment from the Savard Group, 103 Canada stands in the place of the Savard Group with respect to the Agreements. 103 Canada alleges that the Defendants’ wrongful actions subsequent to the date of the Vesting Orders (a) are in breach of the Agreements, and (b) include a conspiracy to damage the goodwill or reputation of the plaintiff corporation. 103 Canada seeks injunctive relief and damages in excess of $2M.

[12] The Amended Statement of Defence and Third Party Counterclaim delivered by the Defendants/Plaintiff by Counterclaim is 40 pages long. Excluding the cover and back pages, the Amended Statement of Defence is 32 pages and contains 106 paragraphs.

[13] The Counterclaim is advanced solely by Mr. Kechichian. That pleading is two pages long and consists of a single paragraph. In 26 sub-paragraphs lettered from “a” to “z”, Mr. Kechichian sets out the relief he is claiming. In total, Mr. Kechichian seeks damages in excess of $21M. Included in that amount is $5.5M, alleged to be the value of the Class D shares of Laurier Optical to which Kechichian claims entitlement (“Shares”). In the alternative, Mr. Kechichian seeks ownership of the Shares.

[14] The Defendants by Counterclaim originally included RCGT and its representative, Benoit Fontaine. In April 2019, RCGT and Fontaine obtained an order from the Quebec Superior Court of Justice, staying the Counterclaim against them.

[15] The remaining Defendants by Counterclaim include 103 Canada, two other corporations, and several individuals. Madeleine Bonhomme and Sameh Mansour are two of those individuals. 103 Canada, Bonhomme, and Mansour (“the Moving Parties”) bring this motion to strike the Counterclaim against them in its entirety.

[16] The Moving Parties originally relied on five grounds in support of the relief sought. As of the return of the motion, the grounds relied on were reduced to three in number, as follows:

a) The Counterclaim is a collateral attack on the Vesting Orders; b) The Counterclaim discloses no reasonable cause of action against the Moving Parties. For example, the Counterclaim does not include any allegations, which if proven, would support a finding of liability on the part of either Bonhomme or Mansour; c) The Counterclaim is frivolous, vexatious, an abuse of process, and duplicative of other proceedings which Kechichian commenced against the Moving Parties and others.

[17] As a preliminary matter, the Moving Parties seek leave of the court to rely on the affidavit of Caitlin Barker (“Barker Affidavit”).

[18] In response to the motion, Mr. Kechichian delivered a motion record that includes a single affidavit in his name. There are three exhibits to that affidavit: 1) a copy of a document dated September 23, 2016 titled “Convention D’Achat D’Actifs”; 2) two copies of the August 31, 2017 vesting order issued in the CCAA proceeding; and 3) a document titled “affidavit with regards to unpaid assets at Laurier Optical and La Vue stores”. In his affidavit, Mr. Kechichian describes this third document as “Affidavit of assets found by Kechichian”.

[19] This is not a bilingual proceeding. As a result, if a party intends to rely on the contents of a document written in French, the party must deliver a certified translation of the document: Courts of Justice Act, R.S.O. 1990, c. C.43, s.125(2)(b). Mr. Kechichian was given an opportunity to, and did, file a translation of a French document described above. The English translation of the title of the document is “Agreement of Purchase of Assets”.

[20] At the same time, and without having been granted leave by the court to do so, Mr. Kechichian included four other documents with the translation of the Agreement of Purchase and Assets. The four additional documents are

• three pages of additional submissions from Mr. Kechichian addressing the 2016 Sale,
• “Summary of Documents by Antranik Kechichian”,
• a Letter of Intent dated April 22, 2016 from Savard to Mr. Kechichian (both the original French version and an English translation), and
• an Agreement of Closing and Amendment dated October 3, 2016 with respect to the sale of the Laurier Optical franchise system from the Kechichian Group to the Savard Group (both the original French version and an English translation).

[21] The Moving Parties object to the inclusion of the additional submissions. The Moving Parties do not object to the delivery of either the Letter of Intent or the Agreement of Purchase of Assets.

The Issues

[22] The substantive issues to be determined on this motion are as follows:

1. Is the Counterclaim a collateral attack on the Vesting Orders?
2. Does the Counterclaim disclose a reasonable cause of action against any of the Moving Parties?
3. Is the Counterclaim frivolous, vexatious, an abuse of process, and/or duplicative of other proceedings which Kechichian has commenced?

[23] Before deciding the substantive issues, I turn first to the request by 103 Canada for leave to rely on the Barker Affidavit.

Preliminary Issue – The Barker Affidavit

a) Contents of the Barker Affidavit

[24] Ms. Barker is a law clerk with the office of counsel for the Moving Parties. In her affidavit, Ms. Barker sets out the chronology of events to date in this action and in the counterclaim. She also identifies six other actions and one application, each commenced by Mr. Kechichian, in which the Moving Parties or companies controlled by Bonhomme and Mansour have been named as defendants or respondents. Lastly, Ms. Barker identifies and attaches as exhibits, copies of the Ontario APA, the Quebec APA, the Vesting Orders, and a subsequent order of de Blois J. of the Quebec Superior Court of Justice.

b) The Rules of Civil Procedure

[25] The Moving Parties bring this motion pursuant to Rules 21 (Determination of an Issue Before Trial) and 25 (Pleadings in an Action) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[26] The Moving Parties rely on rr. 21.01(1)(a) and (3)(c)-(d) in support of their request for an order striking or permanently staying the Counterclaim. The former addresses the determination of a question of law. No evidence is admissible on a motion of that kind, except with leave of the judge or on the consent of the parties: r. 21.01(2)(a).

[27] Subrule 21.01(3) provides that a defendant may bring a motion for an order staying or dismissing an action on one or more of four enumerated grounds. Those grounds include that there is another proceeding pending in Ontario involving the same parties or about the same subject matter (r. 21.01(3)(c)) and the action is frivolous, vexatious, or an abuse of process (r. 21.01(3)(d)).

[28] A party is not precluded from relying on evidence in support of a motion brought under either of rr. 21.01(3)(c) or (d).

[29] The Moving Parties also rely on r. 25.11, which provides as follows:

The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the court.

[30] There is no restriction on evidence on a motion brought under r. 25.11.

c) Analysis

[31] I am not convinced that, on this motion, there is a discreet issue of law to be determined pursuant to r. 21.01(1)(a). The motion can be determined on the basis of the Moving Parties’ request for the Counterclaim to be struck on one or more of the grounds listed in paragraph 4, above. As a result, there is no restriction on the evidence upon which the Moving Parties may rely. The Moving Parties do not require leave for the Barker Affidavit to be admitted on the motion.

[32] If I am wrong in that regard, I would, in any event and for the following reasons, grant leave to admit the Barker Affidavit as evidence on the motion:

• A court is entitled to look at its own record and proceedings, and to take notice of their contents: Alvi v. Misir (2004), 73 O.R. (3d) 566 (S.C.), at paras. 27-29. Whether that record and those proceedings are in an Ontario court or a Quebec court, affidavit evidence is required;
• The Barker Affidavit is restricted to matters of record and is a convenient method by which to present the court with the key portions of the historical documents and proceedings it requires: Mapletoft v. Christopher J. Service, at para. 15;
• The Vesting Orders do no recite or refer to the contents of the Ontario APA or the Quebec APA. The contents of those documents are, however, relevant to the substantive effect of the Vesting Orders;
• The order of de Blois J. is relevant to prior proceedings related to the sale of Laurier Optical from the Monitor to 103 Canada. As that order is not part of this action, the only way to present it to the court is in the form of an exhibit to an affidavit; and
• This court has the discretion to admit evidence on a motion pursuant to r. 25.11: Khan (Litigation Guardian of) v. Lee, 2012 ONSC 4363, at paras. 24 and 28.

[33] With the preliminary evidentiary issue determined, I turn to the substantive issues.

Issue No. 1 – Is the Counterclaim a collateral attack on the Vesting Orders?

a) The Vesting Orders

[34] The Vesting Orders approving the Ontario APA and the Quebec APA are similarly, if not identically, worded.

[35] The Vesting Orders provide that 103 Canada’s rights, title, and interest in various real property leases, franchise and licensing agreements, and other contracts purchased from the Monitor vest absolutely in 103 Canada “free and clear of all Encumbrances other than the Permitted Encumbrances” (i.e., para. 34 of the first vesting order). The Permitted Encumbrances do not include (a) the long-term debts which the Savard Group agreed to assume from the Kechichian Group pursuant to the terms of the 2016 Sale, (b) the Shares, or (c) any rent or lease arrears which accrued prior to 103 Canada’s purchase of the Assets.

[36] In addition, the Vesting Orders include a property claim process, which any creditor claiming a right of ownership in a Sale Asset could follow to secure the return of subject property or appeal to the Quebec Superior Court of Justice to resolve a dispute with respect to the subject property. Lastly, any party to one of the Assigned Contracts could apply to the Quebec Superior Court of Justice for advice and direction, or to seek relief.

[37] Of the three Moving Parties, only 103 Canada is a party to the Vesting Orders. Neither of Bonhomme or Mansour is a party to those orders.

[38] There is no evidence that Mr. Kechichian at any time attempted to avail himself of the processes available to creditors of the Savard Group and parties to an Assigned Contract. Mr. Kechichian does not dispute that not only has he not applied to vary or appealed from either of the Vesting Orders, but he also does not dispute that neither of the Vesting Orders has been appealed or varied.

b) The Stay Order

[39] The April 2019 order of de Blois J. (“Stay Order”) is broader in scope than a stay of the Counterclaim against RCGT and Fontaine. At para. 12 of that order, de Blois J. declares that

no person, including Antranik Kechichian or Phil Cunningham [Kechichian’s assistant], shall institute or continue proceedings, in Canada or anywhere else, against the Monitor or its affiliated entities, or their directors, their counsel, their agents or their employees, including Benoit Fontaine and Philippe Cote, relating to the Monitor’s appointment, its conduct as Monitor or the carrying out of the provisions of any order of this Court, except with prior leave of this Court sought by a duly filed application, on at least five days notice to the Monitor and its counsel.

[40] Subsequent to the Stay Order being made, Mr. Kechichian amended the Counterclaim by striking through the names of RCGT and Fontaine in the title of proceeding. He did not, however, amend the Counterclaim by deleting any of the substantive allegations against RCGT and Fontaine: see, for example, paras. 16, 27, 29-31, 35, 37, 41, 53, 55, 59, 66, 75, and 81.

[41] Under para. 14, the Stay Order has full force and effect in all provinces and territories of Canada. It therefore has effect in Ontario.

c) Collateral Attack and the Counterclaim

[42] In Wilson v. The Queen, [1983] 2 S.C.R. 594, at p. 599, the Supreme Court of Canada described the rule against collateral attack as follows:

It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally – and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.

[43] As already noted, the Counterclaim is comprised of a single paragraph, with 26 sub-paragraphs. In the Counterclaim, Mr. Kechichian does not incorporate by reference, plead and rely upon the allegations set out in the Statement of Defence. Mr. Kechichian is self-represented; as a result, the technical deficiencies in the Counterclaim alone are not a sufficient basis upon which to strike it.

[44] On this motion, the Moving Parties proceeded on the basis that the allegations set out in the Statement of Defence form part of the Counterclaim.

[45] The Statement of Defence and Third Party Counterclaim is a lengthy and detailed document. It is not necessary to review the contents of that document in detail to determine Issue No. 1. The following points provide examples of the extent to which the Counterclaim is a collateral attack on the CCAA proceedings and Vesting Orders:

• Mr. Kechichian alleges that RCGT and Fontaine were in a conflict of interest, that the CCAA proceedings were fraudulent, and that the CCAA proceedings were orchestrated by a third party with RCGT in an effort to bankrupt the Savard Group and eliminate the rights of creditors including Mr. Kechichian (see paras. 16, 30, 41, 53 and 59 of the Amended Statement of Defence); and
• Mr. Kechichian is advancing a claim against 103 Canada for unpaid rent (for periods prior to the dates of sale from the Monitor to 103 Canada) at various Laurier Optical locations and based on other forms of long-term debt upon which the Savard Group defaulted (see para. 81 of the Amended Statement of Defence and para. 1 of the Counterclaim).

[46] The allegations or belief, on Mr. Kechichian’s part, that the CCAA proceedings were orchestrated or manipulated by RCGT and others is also reflected in the oral submissions made by Mr. Kechichian on the return of the motion. He submitted that he has “zero” problems with the Vesting Orders, but he has a problem with 103 Canada and the Savard Group having “manipulated” the Quebec Superior Court of Justice in the CCAA proceedings.

[47] Lastly, Mr. Kechichian relies on Article 4.3 of both APAs. That article provides that all the Sale Assets were transferred to 103 Canada on an “as is”, “where is” basis without representation, warranty, or condition. Mr. Kechichian submits that because 103 Canada’s purchases of the Assets were on an “as is” and “where is” basis, he is entitled to look beyond the Vesting Orders to seek relief at this time – including relief related to the long-term debt of the Savard Group, the Shares, and so forth.

[48] I find that Mr. Kechichian’s submission in that regard (a) represents a misunderstanding of the terms and effect of the Vesting Orders, and (b) is a collateral attack on the Vesting Orders.

[49] In summary, I find that the Counterclaim constitutes a collateral attack on the Vesting Orders.

Issue No. 2 – Does the Counterclaim disclose a reasonable cause of action against any of the Moving Parties?

[50] On this issue, the Moving Parties focus on the Counterclaim against the individual Defendants by Counterclaim, Bonhomme and Mansour. The Moving Parties’ position is that the Counterclaim does not include any allegations of personal tortious conduct on the part of either individual.

[51] When a claim is advanced against both a corporation and individuals within the corporation, the plaintiff is required to plead with sufficient particulars to disclose a basis for attaching liability to the individuals in their personal capacity: Tran v. University of Western Ontario, 2015 ONCA 295, at para. 17.

[52] Set out in the list below are some of the key allegations made by Mr. Kechichian in support of the claims against Bonhomme and Mansour:

• Bonhomme and Mansour are Directors of 103 Canada (para. 12). Bonhomme is a licensed optician in Quebec (para. 13) and Mansour is a licensed optometrist in Quebec (para. 14);
• Bonhomme and Mansour are both alleged to be (a) a “partner in the new Laurier Optical”, and (b) the “new front” for Essilor (paras. 14, 15, and 59(v) items ‘e’ and ‘f’). Essilor is a co-defendant to the Counterclaim. Mr. Kechichian alleges that Essilor had, for several years prior to 2017, attempted to undermine him so as to permit Essilor to acquire an ownership stake in Laurier Optical. Mr. Kechichian alleges that Essilor has succeeded in doing so through 103 Canada’s acquisition of the Assets; and
• For the purpose of the CCAA proceedings, Mansour was appointed as the spokesperson to represent all franchisees. Mr. Kechichian alleges that, in that capacity, Mansour instructed all franchisees to stop paying franchise fees to the Savard Group. Mr. Kechichian alleges that 103 Canada “manipulated” Mansour to give those instructions so that 103 Canada could terminate Mr. Kechichian’s franchise agreement made originally with the Savard Group (para. 83).

[53] Mr. Kechichian’s theory is that 103 Canada worked with Essilor in an effort to undermine his position with respect to the continuing liability of the Savard Group to Mr. Kechichian following the 2016 Sale.

[54] I make no findings of fact with respect to the allegations made by Mr. Kechichian as to the involvement of Bonhomme and Mansour in “manipulating” circumstances prior to the 2017 Sale. Regardless, to the extent that there is any merit to that theory, the time to raise and test the merits of it was during the 2017 CCAA proceedings. I find that there is no basis for attaching liability to either Bonhomme or Mansour in that regard.

[55] I find, however, that the Counterclaim includes allegations that relate to the conduct of Bonhomme and Mansour in a capacity other than as a Director of 103 Canada. At paras. 17 and 18 of the Counterclaim, Mr. Kechichian alleges that each of Bonhomme and Mansour (a) previously operated a Laurier Optical franchise (i.e., during the Kechichian Group’s ownership of Laurier Optical), and (b) collectively owe arrears of rent totalling in excess of $100,000 for the period prior to the 2017 Sale. Mr. Kechichian alleges that the action commenced by 103 Canada is retaliation for the Kechichian Group’s previous efforts to collect arrears of rent from Bonhomme and Mansour.

[56] The Counterclaim includes claims for damages for unpaid rent at the franchise locations operated by each of Bonhomme and Mansour – rent for which Mr. Kechichian is a personal guarantor to the landlords. The damages claimed in that regard are set out in para. 1, items ‘v’ and ‘w’ of the Counterclaim.

[57] The Counterclaim against Bonhomme and Mansour with respect to unpaid rent is discussed below under Issue No. 3. Leaving aside that aspect of the Counterclaim, I find that the deficiencies in the pleading against Bonhomme and Mansour are such that the Counterclaim discloses no reasonable cause of action against them other than in their respective capacities as Directors of 103 Canada.

Issue No. 3 – Is the Counterclaim frivolous, vexatious, an abuse of process, and/or duplicative of other proceedings which Kechichian has commenced?

[58] The Moving Parties request that the Counterclaim be struck because it is “frivolous or vexatious” (rr. 21.01(3)(d) and 25.11(b)), an “abuse of process” (rr. 21.01(3)(d) and 25.11(c)), or duplicative of other proceedings (r. 21.01(3)(c)).

a) Frivolous, Vexatious, or an Abuse of Process

[59] In Best v. Ranking, 2015 ONSC 6269, aff’d 2016 ONCA 492, 351 O.A.C. 132, leave to appeal to S.C.C. refused, 37175 (February 2, 2017). At para. 59, Healey J. summarized the purposes of pleadings as follows (citations omitted):

(a) to define clearly and precisely the questions and controversy between the litigant; (b) to give fair notice of the precise case which is required to be met and the precise remedy sought; and (c) to assist the court in its investigation in the truth of the allegations made.

[60] A pleading that does not meet the purposes of pleadings under the Rules of Civil Procedure is vexatious and an abuse of process. At para. 62, Healey J. identified as frivolous, vexatious, or an abuse of process a statement of claim from which it

is a challenging, if not impossible, task to gain an understanding from it of which causes of action are being asserted against which defendants, which defendants are being referenced from time to time, which allegations are being levelled against which defendants and why and how, all the while casting scandalous aspersions on the defendants amidst irrational and convoluted argument in support of the allegations made.

[61] In striking the statement of claim in the matter before him, Healey J. described the subject pleading as including “allegations [that] are vague and sweeping, with little to no specificity or particulars to enable the defendants to know the case that they must meet”: Best, at para. 62.

[62] For this motion, it is assumed that, in support of the relief sought by Counterclaim, Mr. Kechichian pleads and relies upon the allegations made in the Amended Statement of Defence. The descriptions by Healey J. of the statement of claim before him are equally applicable to the allegations made in the Amended Statement of Defence. The allegations in Mr. Kechichian’s pleading are sweeping. The allegations are detailed and lengthy, yet it is very challenging to identify specific causes of action and to identify the Defendants by Counterclaim against whom those causes of action are plead.

[63] Mr. Kechichian knowingly delivered a pleading of this kind. Paragraph 19 of the document begins with the following statement: “Due to the complexity of this file, [Mr.] Kechichian wishes to elaborate on all of the facts to assist the Court to better understand this entire ordeal ” (emphasis added).

[64] The allegations made by Mr. Kechichian are also replete with aspersions cast not only on the Moving Parties and other Defendants to the Counterclaim, but on the CCAA proceedings. For example, at para. 53 of the Amended Statement of Defence, Mr. Kechichian alleges that the appointment of Fontaine/RCGT as Monitor of the Savard Group was a “conflict of interest to serve only Essilor” and to permit it to in some way gain an ownership stake in Laurier Optical. This theme of Essilor manipulating the process for that purpose is repeated throughout the Amended Statement of Defence.

[65] I find that the Counterclaim is frivolous, vexatious, and an abuse of process.

b) Duplicative of Other Proceedings

[66] Included as exhibits to the Barker Affidavit are copies of statements of claim in other actions commenced by Mr. Kechichian. The individual Moving Parties rely on the pleadings in those actions as duplicative of the Counterclaim. I deal first with the claims against Bonhomme and then the claims against Mansour.

▪ Bonhomme

[67] From Bonhomme, Mr. Kechichian seeks damages of $100,000 for “legal fees and balance owed by Bonhomme to pay the assets of the Laurier Optical Alymer [sic] franchise” (para. 1(v) of the Counterclaim). At para. 60 of their factum, the Moving Parties submit that this claim is duplicative of the relief previously sought by Mr. Kechichian in an action that he commenced against 3023192 Canada Inc., a corporation controlled by Bonhomme (“the 302 Action”)

[68] A copy of the statement of claim in the 302 Action is not included in the record and is not referred to by Barker in her affidavit. There is no evidence before the court as to the claims made in that action. As a result, I am unable to compare the claims made against Bonhomme giving rise to the damages requested in para. 1(v) of the Counterclaim with the relief sought in the 302 Action. I am unable to determine whether the claims advanced in the Counterclaim are duplicative of the claims made in the 302 Action.

[69] In her affidavit, Ms. Barker identifies six actions and one application commenced by Mr. Kechichian in which the Laurier Parties or companies owned or controlled by Bonhomme or Mansour are named as defendants or respondents. It may have been an oversight on the part of the Moving Parties that they did not include in their record a copy of the statement of claim in the 302 Action.

[70] The Rules of Civil Procedure must be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”: r. 1.04(1).

[71] One option available to the court is to dismiss this aspect of the Moving Parties’ motion, without prejudice to them to seek this relief again on a better record. I find that proceeding in that manner would result in delay and unnecessary expense. A just, expeditious, and inexpensive method by which to determine this issue is to adjourn this aspect of the motion. In the event the Moving Parties and Mr. Kechichian are otherwise unable to resolve this part of the motion through settlement discussions, then additional materials shall be filed, and the balance of the motion shall be determined in writing.

▪ Mansour

[72] From Mansour, Mr. Kechichian seeks damages of $200,000 for “legal fees and balance owed by Mansour to pay the assets of the Laurier Optical Innes Road franchise” (para. 1(w) of the Counterclaim). At para. 59 of their factum, the Moving Parties submit that this claim is duplicative of the relief sought by Mr. Kechichian in an ongoing action that he commenced against 9412336 Canada Inc. (“the 941 Action” and “941 Canada”, respectively).

[73] A copy of the statement of claim in the 941 Action is included as Exhibit “D” to the Barker Affidavit. In his pleading, Mr. Kechichian alleges that Mansour is the “Principal owner and Director” of 941 Canada. The 941 Action deals with a Laurier Optical location identified as 2002 Mer Bleue Road in the City of Ottawa. There is no evidence before the court to assist it in determining whether the Mer Bleue Road location is one and the same as the Innes Road location, the latter of which is the subject of the Counterclaim.

[74] I agree with the Moving Parties that if the Mer Bleue location is one and the same as the Innes Road location, then, (a) the relief sought at para. 1(w) of the Counterclaim is duplicative of the relief sought in the 941 Action, and (b) there are grounds to support an order striking that aspect of the Counterclaim.

[75] For the same reasons set out in para. 71, I find that a just, expeditious, and inexpensive method by which to determine this issue is to adjourn this aspect of the motion. In the event the Moving Parties and Mr. Kechichian are unable to resolve this aspect of the motion, then additional materials shall be filed, and the balance of the motion shall be determined in writing.

Order Made

[76] For the reasons set out above, I order as follows:

1. The Third Party Counterclaim is struck in its entirety as against 10313033 Canada Inc. (“103 Canada”).
2. The Third Party Counterclaim is struck as against Madeleine Bonhomme (“Bonhomme”), with the exception of the claims for the relief set out in paragraph 1(v).
3. The Third Party Counterclaim is struck as against Sameh Mansour (“Mansour”), with the exception of the claims for relief set out in paragraph 1(w).
4. For greater clarity, the relief claimed in paragraph (1)(a)-(h), (k), (l), and (u) of the Third Party Counterclaim, as it relates one or more of 103 Canada, Bonhomme, and Mansour is struck.
5. The motion with respect to the claims for relief set out in paragraphs 1(v) and (w) of the Third Party Counterclaim is adjourned.
6. In the event Bonhomme and Mansour are unable to resolve with Mr. Kechichian the portions of the Moving Parties’ motion that have been adjourned, then additional materials shall be delivered in accordance with the Rules of Civil Procedure, subject to the following: a) Bonhomme and Mansour shall, within 21 days of the date of this ruling, deliver their supplementary motion record; b) The deadlines prescribed by the Rules of Civil Procedure shall thereafter apply with respect to the delivery of the responding motion record and the reply record, the latter if any; c) Bonhomme and Mansour shall, no later than 10 days following the deadline for the delivery of their reply record (i.e., even if no reply record is delivered), deliver their factum and book of authorities; d) Mr. Kechichian shall, no later than 15 days following service of the Bonhomme and Mansour factum on him, deliver his factum and book of authorities; and e) Bonhomme and Mansour shall, no later than 10 days following service on them of the Kechichian factum and book of authorities, deliver their reply factum and book of authorities, if any.
7. All materials shall be filed with the Court electronically in accordance with the protocols established by the Court for the filing of documents in that manner during suspension of regular operations due to COVID 19.
8. In the event any one of Bonhomme, Mansour, and Antranik Kechichian encounters difficulty in filing documents electronically: a) the parties shall work together co-operatively to agree upon extensions of deadlines and shall advise the Court of any such extensions; b) information in that regard shall be sent by email, to the attention of Justice Corthorn, at SCJ.Assistants@ontario.ca, with both the title of proceeding and the court file number included in the email sent; and c) in the event an agreement is not reached, Bonhomme, Mansour, and Antranik Kechichian shall, upon resumption of regular court operations, make arrangements for a case conference before Justice Corthorn and they shall be required to appear in person.

[77] The issue of costs of the motion shall be addressed once the balance of the motion has been determined.

Madam Justice Sylvia Corthorn

Released: April 2, 2020