Court File and Parties

COURT FILE NO.: CV-19-80189 DATE: 20210208 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ANTRANIK KECHICHIAN, Plaintiff AND: GESTION ERIC SAVARD, Dr. ERIC SAVARD, ESSILOR GROUP CANADA, 10313033 CANADA INC., KHALED EL-SHIEK, DANY DREIGE, ROSALIE MALO, MADELEINE BONHOMME, SAMEH MANSOUR, KAUFMAN LLP, 10402623 CANADA INC., 10366668 CANADA INC., RAHMA HAJJAJI, TAMI ABOUBAKARY, 9372-3781 QUÉBEC INC., 9346-3495 QUÉBEC INC., 9346-3503 QUÉBEC INC. and 9109862 CANADA INC., Defendants

BEFORE: Mew J.

COUNSEL: Antranik Kechichian, unrepresented Gary G. Boyd, for the defendant (moving party), Kaufman LLP Chad Pilkington, for the defendant, Essilor Group Canada Inc.

HEARD: 28 October 2020, in Ottawa (by Zoom)

Endorsement

[1] This motion for summary judgment is brought by the plaintiff’s former lawyers seeking the dismissal of this action as against them on the grounds that:

a. This action was commenced well outside of any limitation period for an action arising from work done by Kaufman LLP for the plaintiff or Optical Vision of Canada Ltd.

b. Such damages as are claimed in the action are not those of the plaintiff and he has no right, at law, to claim them.

c. The claim is duplicative of other claims made by the plaintiff in actions in both Ontario and Québec;

d. The action is an impermissible collateral attack on orders of the Québec Superior Court in the application by Gestion Éric Savard and affiliated companies under the Companies Creditors Arrangements Act (“CCAA") and subsequently under the Bankruptcy and Insolvency Act ("BIA").

[2] On 23 September 2016, the plaintiff executed an Asset Purchase Agreement (“APA”) on his own behalf and on behalf of Optical Vision of Canada Ltd., Optique Laurier Inc., 8187991 Canada Inc., 8348111 Canada Inc. Under the terms of the APA, the assets owned by Optical Vision of Canada Ltd (“Optical Vision”) were sold to Gestion Éric Savard and its affiliated companies (the “Savard companies”).

[3] The moving party represented the plaintiff and the companies he acted on behalf of in respect of the APA.

[4] In the present action, the plaintiff alleges that the Kaufman firm failed in their representation of the plaintiff’s interests. Specifically, Kaufman is alleged to have not properly executed the transfer of leases to asset purchasers, resulting in the Optical Vision of Canada Ltd. being liable for lease payments which it guaranteed payment of.

[5] The lease which is the subject of this action concerns a property located at 1465 Avenue Van Horne in Outremont.

[6] On 19 January 2019, the lessor of the Van Horne property obtained a default judgment in the Court of Québec against, inter alia, Optical Vision Canada Inc. for $84,999.99. The court’s decision records that an assignment of the lease on the Van Horne property from Optical Vision to Savard was never completed, with the result that Optical Vision remained liable for Savard’s failure to maintain payments.

[7] The plaintiff’s evidence before this court is that he became aware in January 2017 that lease payments on the Van Horne lease had not been made. In fact, according the reasons for default judgment, Optical Vision would have known that something was amiss by no later than December 2016, when, having declined to confirm the assignment pending the furnishing of further information about Savard’s creditworthiness, the lessor’s lawyers wrote to Optical Vision demanding payment of the December rent, which was overdue, and requesting twelve post-dated rent cheques for 2017 as a condition of agreeing to the assignment.

[8] The assets acquired by the Savard companies under the APA, including the Van Horne lease, were subsequently the subject of a Vesting Order, made in the course of the CCAA proceedings on 31 August 2017, vesting those assets in 10313033 Canada Inc., and assigning various enumerated contracts to 10313033 Canada Inc.

[9] The plaintiff claims that he did not know that the moving parties had not effected the assignment. Indeed, the Québec decision recounts that Optical Vision pleaded that its lawyer, presumably someone at Kaufman, had reassured the plaintiff that the lease assignment had been completed. However, there is no direct evidence from Mr. Kechichian, or from anyone else, to that effect.

[10] Regardless, this action was not commenced until 14 May 2019 and Kaufman was not added as a party until 26 August 2020.

[11] The limitation period applicable to all of the plaintiffs’ claims is two years from the day that the claim was discovered: Limitations Act, 2002, S.O. 2002, c 24, Sch B, s. 4. There is a rebuttable presumption that time runs from the date on which the act or omission on which the claim is based took place: s. 5(2). Giving the plaintiff the benefit of the doubt, it can be inferred from the record that the plaintiff might not have known that the lease had not been assigned until Optical Vision received the landlord’s demand in December 2017.

[12] If one accepts the plaintiff’s evidence that Kaufman were required to get the leases assigned, then it would at some point have become obvious to him that that had not happened. In the absence of any evidence as to when Mr. Kechichian says Kaufman told him the lease had been assigned, it can safely be presumed that by no later than December 2016 the plaintiff knew, or should have known, that Kaufman had not done the job he expected them to.

[13] Kaufman was not sued in this action until three and a half years after that. Accordingly, Mr. Kechichian’s claim against them is statute-barred.

[14] While, given that finding, it is not strictly necessary to deal with the other grounds put forward by the moving parties in support of their request for summary judgment dismissing the action against them, I would add a few further comments.

[15] First, the Québec judgment is against Optical Vision, not the plaintiff personally. The plaintiff points to the existence of a personal guarantee, but has provided no evidence of demands having been made pursuant to that guarantee, let alone proceedings having been taken based on it. Indeed, as the moving parties argue in their factum, the orders of the Québec Superior Court already dealt with the liability of the vendors and the plaintiff under the various leases. Accordingly, the plaintiff has not advanced any basis to claim against the moving parties for damages arising from the default judgment on the Van Horne lease.

[16] Second, the plaintiff also seeks $150,000 in legal and accounting fees incurred during the Québec claim against Optical Vision to be paid by Kaufman. Yet when cross-examined, he acknowledged that he had not incurred such expenses. Rather, he explained, “that’s my cost, that’s what I’m paying me”.

[17] Even setting aside the limitation defence which, I find, is fatal to the plaintiff’s claim, his action is therefore untenable. He has not incurred any personal liability as a result of Kaufman’s alleged professional negligence and misconduct. He has suffered no compensable loss. His action cannot succeed. There is no triable issue.

[18] Summary judgment shall go in favour of the moving parties dismissing the action against them. I am presumptively of the view that the moving party is entitled to its costs of the motion and the action on a partial indemnity basis.

[19] As this is one of six summary judgment motions involving the plaintiff which were heard consecutively, I will give direction separately with respect to the delivery of costs summaries and submissions on the issue of costs in both this and the other summary judgment motions which I heard at the same time.

Mew J. Date: 08 February 2021