Court File and Parties

COURT FILE NO.: CV-19-79346 DATE: 2020/06/03 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 and in writing

ADDENDUM TO RULING ON MOTION

Introduction

[1] Three of the defendants by counterclaim brought a motion to have the Third Party Counterclaim (“Counterclaim”) struck as duplicative of other proceedings, frivolous, vexatious, an abuse of process, and/or a collateral attack on orders made in related proceedings in the Superior Court of Quebec. The three defendants are 10313033 Canada Inc. (“103 Canada”), Madeleine Bonhomme (“Bonhomme”), and Sameh Mansour (“Mansour”); they are collectively referred to as “the Moving Parties”.

[2] In an earlier ruling, the relief requested by the Moving Parties was granted with respect to all but two aspects of the Counterclaim: 10313033 Canada Inc. v. Kechichian et al., 2020 ONSC 1990 (“the Ruling”).

[3] The court was unable to determine whether the Counterclaim against Bonhomme with respect to the Laurier Optical Aylmer franchise and against Mansour with respect to the Laurier Optical Innes Road (Ontario) franchise should be struck. That aspect of the motion was adjourned to permit the Moving Parties and the plaintiff by counterclaim, Antranik Kechichian, to resolve it or, if necessary, to file additional materials.

[4] The Moving Parties and Mr. Kechichian were unable to resolve the outstanding issues. Additional materials were filed by the Moving Parties. Mr. Kechichian did not deliver any additional materials.

[5] Background information with respect to the parties and the matters in dispute are set out in the Ruling and will not be repeated here. This addendum deals only with the request from the Moving Parties for paragraphs 1(v) and (w) to be struck from the Counterclaim.

Bonhomme and the Aylmer Franchise – paragraph 1(v)

[6] At paragraph 1(v) of the Counterclaim, Mr. Kechichian seeks damages of $100,000 from Bonhomme for legal fees and the balance said to be owed by her to “pay the assets of the Laurier Optical Alymer [sic] franchise”. The Moving Parties submit that this claim duplicates the relief previously sought by Mr. Kechichian in an action commenced against 3023192 Canada Inc. (“302 Canada”), a corporation controlled by Bonhomme (“the 302 Action”).

[7] The court was unable to rule on this issue because a copy of the statement of claim in the 302 Action was not included in the Moving Parties’ motion record. A copy of that pleading is now before the court, as an exhibit to a supplementary affidavit of law clerk Caitlin Barker (“the Barker Affidavit”).

[8] The plaintiff in the 302 Action is 990982 Ontario Inc. (“990 Ontario”). Mr. Kechichian is described in the statement of claim as “the director and shareholder” of 990 Ontario. The only named defendant is 302 Canada. Bonhomme is not personally named as a defendant. The plaintiff corporation alleges, however, that Bonhomme is one of two individual directors of 302 Canada. There are no allegations made against Bonhomme personally in the substantive portion of the statement of claim.

[9] The plaintiff corporation seeks damages related to an agreement between it and 302 Canada with respect to the purchase by the latter corporation of an ownership interest in the Aylmer, Quebec franchise of Laurier Optical. The damages claimed are $61,030. That amount is based on the alleged failure of 302 Canada to (a) make the final nine (of 57) instalment payments on the purchase price, and (b) pay $21,000 towards a “buy back option”.

[10] Those allegations are compared to the allegations against Bonhomme personally in the Counterclaim. At paragraph 17 of the Counterclaim, Mr. Kechichian makes the following allegations with respect to the Aylmer and Innes Road franchises:

We would like to bring to the Court’s attention that prior to the Plaintiff’s filing this claim, that the Defendant Kechichian had filed litigation claims against Mansour and Bonhomme for their failure to pay the balance and arrears for their Aylmer and Innes Road franchise locations that were purchased from Kechichian with payment facilities through post-dated cheque before the date of selling of Laurier Optical to Savard/Essilor in October 2016. Unfortunately both Bonhomme’s and Mansour’s cheques bounced for non-sufficient funds. When Kechichian followed up with Bonhomme and Mansour, they decided to abruptly stop payment with no notice and no reason which put both of them in arrears for over $100,000. The present claim by 103 … is believed to be in retaliation for the two claims that Kechichian filed against the plaintiff to respect the arrears and balance payments. (Punctuation as in original.)

[11] The allegation that the present action is a retaliatory measure by 103 Canada is repeated in paragraph 18 of the Counterclaim.

[12] The Moving Parties submit that, when preparing the Counterclaim, Mr. Kechichian knew, or ought to be imputed with the knowledge, that the parties to the agreement for the Aylmer franchise were the two numbered companies (990 Ontario and 302 Canada) – not Mr. Kechichian and Bonhomme personally. The Moving Parties submit that, as a result, the claim made against Bonhomme in the Counterclaim is an abuse of process.

[13] I agree with the Moving Parties. The allegations made in the Counterclaim against Bonhomme personally duplicate, but are not identical to, the allegations made by 990 Ontario against 302 Canada in the 302 Action. For three reasons, I find that the allegations made against Bonhomme and the relief sought in paragraph 1(v) of the Counterclaim are an abuse of process.

[14] First, I find that the allegations against Bonhomme personally with respect to the purchase of the Aylmer franchise could have been pleaded in the statement of claim in the 302 Action. Bonhomme is identified in that pleading as a director and shareholder of 302 Canada. The attempt in the Counterclaim to pursue a claim that could have been made in the 302 Action is an abuse of process: The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, 145 O.R. (3d) 759, at para. 67.

[15] Second, I find that, in the Counterclaim, Mr. Kechichian knowingly advanced a position that is irreconcilable with the allegations made in the 302 Action. He advanced the irreconcilable position with full knowledge of the circumstances. He in no way identified the position advanced in the Counterclaim as an alternative to the position advanced in the 302 Action. As such, the allegations made against Bonhomme personally and the relief sought at paragraph 1(v) of the Counterclaim are an abuse of process: Alharayeri v. Wilson, 2018 ONSC 6309, 87 B.L.R. (5th) 289, at paras. 54-56.

[16] Third, I find that the inconsistencies between the allegations made in the 302 Action and those made in the Counterclaim with respect to the purchase of an ownership interest in the Aylmer franchise could result in inconsistent findings from one proceeding to the next. For the protection of the integrity of the court’s process, the inconsistent allegations in the Counterclaim cannot stand together with the allegations made in the 302 Action: Pepper’s Produce Ltd. v. Medallion Realty Ltd., 2012 BCCA 247, 34 B.C.L.R. (5th) 226, at para. 28.

[17] In summary, paragraph 1(v) of the Counterclaim is struck.

Mansour and the Innes Road Franchise

[18] At paragraph 1(w) of the Counterclaim, Mr. Kechichian seeks damages of $200,000 from Mansour for legal fees and the balance said to be owed by him to “pay the assets of the Laurier Optical Innes Road franchise”. The Moving Parties submit that this claim is duplicative of relief previously sought by Mr. Kechichian in an action commenced against 9412336 Canada Inc. (“the 941 Action” and “941 Canada”, respectively).

[19] A copy of the statement of claim in the 941 Action was included in the Moving Parties’ motion record. The plaintiff in that action is Mr. Kechichian, personally. The sole named defendant is 941 Canada. In that action, Mr. Kechichian alleges that Mansour is the “Principal owner and Director” of 941 Canada. The 941 Action deals with a Laurier Optical franchise identified as being located at 2002 Mer Bleue Road in the City of Ottawa.

[20] When the parties were before the court on the return of the motion, there was no evidence to assist the court in determining whether the Mer Bleue Road location which is the subject of the 941 Action is the same as the Innes Road location that is the subject of the Counterclaim.

[21] In the Ruling, the court said that it “[agreed] 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 paragraph 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”: at para. 74.

[22] Attached as an exhibit to the Barker Affidavit is a copy of the reply and statement of defence to counterclaim delivered by Mr. Kechichian in the 941 Action. The allegation made at paragraph 5 of that pleading includes a reference to the Laurier Optical franchise located at “8-2002 Mer Bleue Road, Orleans, Ontario (Innes Franchise)” (bold font in original). The Moving Parties rely on that description in support of their position that the “Innes Franchise” described in the Counterclaim is the Mer Bleue location which is the subject of the 941 Action.

[23] There is no evidence on the motion to suggest otherwise. Mr. Kechichian does not dispute that the Mer Bleue location is the Innes Road franchise.

[24] I find that the Counterclaim against Mansour personally in relation to the Innes Road franchise is an abuse of process for the same reasons as set out above with respect to Bonhomme and the Aylmer franchise. In summary,

• Mansour is identified in the statement of claim in the 941 Action as the “Principal owner and Director” of 941 Canada. Allegations against Mansour personally with respect to the purchase of the Innes Road franchise could have been pleaded in the statement of claim in that action. Mansour is identified in that action as an owner and director of 941 Canada;
• In the Counterclaim, Mr. Kechichian advanced a position that is irreconcilable with the allegations made in the 941 Action. He advanced that position with full knowledge of the circumstances. He in no way identified the position advanced in the Counterclaim as an alternative to the position advanced in the 941 Action; and
• The inconsistencies between the allegations made in the 941 Action and those made in the Counterclaim are such that the latter cannot stand with the former.

[25] In summary, paragraph 1(w) of the Counterclaim is struck.

Relief Granted

[26] For the reasons set out above, I order that paragraphs 1(v) and 1(w) of the Third Party Counterclaim be struck.

[27] The net effect of the relief granted in the Ruling and the relief granted in this addendum, is that the court orders 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 in its entirety as against Madeleine Bonhomme (“Bonhomme”).
3. The Third Party Counterclaim is struck in its entirety as against Sameh Mansour (“Mansour”).
4. For greater clarity, the relief claimed in paragraph (1)(a)-(h), (k), (l), (u), (v), and (w) of the Third Party Counterclaim, as it relates to one or more of 103 Canada, Bonhomme, and Mansour, is struck.

[28] For the sake of efficiency, I dispense with the requirement for the Moving Parties to obtain Mr. Kechichian’s approval as to the form and content of a draft order. The Moving Parties shall submit the draft order following the protocols in place at this time for electronic filing to the attention of a specific judge. When filing the draft order, the Moving Parties shall direct that the order be brought to my attention and they shall copy Mr. Kechichian on the subject email.

Costs

[29] If the Moving Parties, as the successful parties, intend to pursue their costs of the motion and they are unable to resolve the issue of costs with Mr. Kechichian, then written costs submissions shall be delivered as follows:

1. The submissions shall be limited to a maximum of four pages, exclusive of a costs outline;
2. Written submissions shall comply with Rule 4 of the Rules of Civil Procedure;
3. Copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with Rule 4 of the Rules of Civil Procedure with respect to font size;
4. Written submissions shall be delivered by the Moving Parties and by Mr. Kechichian as follows: a) The Moving Parties’ submissions shall be delivered by 5:00 p.m. on the fifteenth business day following the date on which this addendum is released; b) Mr. Kechichian’s submissions shall be delivered by 5:00 p.m. on the twenty-fifth business day following the date on which this addendum is released; and c) The reply submissions, if any, of the Moving Parties shall be delivered by 5:00 p.m. on the thirtieth business day following the date on which this addendum is released.
5. 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.
6. In the event that any one or more of the Moving Parties and Mr. Kechichian encounter 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; and b) information in that regard shall be sent by email, to the attention of Justice Corthorn, in accordance with the above-noted protocols, with both the title of proceeding and the court file number included in the email sent.

Madam Justice Sylvia Corthorn Released: June 3, 2020