COURT OF APPEAL FOR ONTARIO

CITATION: 6443923 Canada Inc. (Zesty Market) v. Khodabandeh, 2016 ONCA 561

DATE: 20160711

DOCKET: C61564

MacPherson, Cronk and Benotto JJ.A.

BETWEEN

6443923 Canada Inc. c.o.b. Zesty Market

Plaintiff (Appellant)

and

Alireza Khodabandeh

Defendant (Respondent)

Eric Lay, for the appellant

Ian B. McBride, for the respondent

Heard: July 8, 2016

On appeal from the judgment of Justice Robert N. Beaudoin of the Superior Court of Justice, dated December 1, 2015.

ENDORSEMENT

[1] The appellant appeals from the judgment of Beaudoin J. of the Superior Court of Justice dated December 1, 2015, granting the respondent’s motion for summary judgment and dismissing the appellant’s claim.

[2] The action arose from the respondent’s employment relationship with the appellant, which operates convenience stores in the Ottawa area. The appellant contends that the respondent took advantage of his status as a trusted employee and stole money from one of the stores.

[3] The motion judge reviewed the evidence put forward on the motion and rejected the appellant’s position. He concluded:

Here, there is no admissible evidence of any theft occurring at the Plaintiff’s premises at any time, let alone that any such theft was committed by the Defendant.

[4] The appellant appeals on two grounds.

[5] First, the appellant contends that the motion judge erred by saying that the appellant failed to provide any evidence from Farzad Panahi, another former employee, about the transcript of a telephone conversation in which Panahi implicated the respondent as a thief who stole from the appellant’s store.

[6] We do not accept this submission. The transcript of the telephone conversation was in the record, as was “Panahi’s Admissions for the Purpose” of Summary Judgment Motion. There is nothing in Panahi’s admissions to implicate the respondent. Indeed, the opposite is there:

Denies having told Mr. Zarei, or anybody else, that A. Khodabandeh misappropriated funds from Zesty Market.

Admitted

[7] In the main, the appellant submits that the motion judge erred in his treatment of the inferences that could be drawn to establish the possibility of a theft from the appellant’s stores.

[8] We disagree. The motion judge carefully reviewed the relevant facts and was entitled to conclude that they did not rise to the level warranting a civil trial anchored in a theft allegation against the respondent.

[9] Second, the appellant submits that the motion judge erred by finding that the jury rejected the allegation of theft against the respondent in the trial of Ali Karimi, the appellant’s owner, on criminal charges, including a conviction for attempted extortion of the respondent.

[10] We are not persuaded by this submission. The motion judge’s comment was based on the sentencing reasons of Rathushy J. with respect to Karimi. The motion judge said these reasons were “not binding”. He was entitled, however, to rely on them in forming his own judgment about the evidence before him on the summary judgment motion.

[11] The appeal is dismissed. The respondent is entitled to his costs of the appeal fixed at $7,500, inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“M.L. Benotto J.A.”