COURT OF APPEAL FOR ONTARIO
CITATION: Kideckel v. Glenbarra Renewable Energy Solutions Inc., 2016 ONCA 932
DATE: 20161212
DOCKET: C61383
Doherty, MacPherson and Lauwers JJ.A.
BETWEEN
Sheldon Kideckel
Plaintiff (Appellant)
and
Glenbarra Renewable Energy Solutions Inc. and Gemco Solar Inc., and Fovere Glenbarra Energy Fund I Ltd.
Defendants (Respondent)
Allan Sternberg and Daniella Murynka, for the appellant
Shane E. Kazushner, for the respondent
Heard: December 9, 2016
On appeal from the judgment of Justice Mario D. Faieta of the Superior Court of Justice, dated November 4, 2015.
ENDORSEMENT
[1] The appellant, Sheldon Kideckel, appeals from the judgment of Faieta J. of the Superior Court of Justice dated November 4, 2015 dismissing his action against the respondent Fovere Glenbarra Energy Fund I Ltd.
[2] The appellant brought an action against several defendants for commissions in the amount of $100,000 that he claimed were owing to him by the defendants for his services of identifying and acquiring leases for three locations upon which rooftop solar systems were built by the defendant Gemco Solar Inc.
[3] Gemco did not defend the action. The respondent brought a motion for summary judgment, seeking dismissal of the appellant’s action against it. The motion judge granted summary judgment. He found that (1) Kideckel did not have an agreement with Fovere for the payment of the commissions claimed; (2) there was no basis to disregard the separate legal personalities of Gemco and Fovere; (3) Fovere was not liable for Gemco’s obligations to Kideckel because there was no evidence that Kideckel was led to believe by Fovere that it was Gemco’s partner; and (4) Fovere was not enriched by Gemco’s alleged failure to pay Kideckel and, therefore, is not liable to Kideckel in equity.
[4] The appellant appeals on four grounds.
[5] First, the appellant submits that the motion judge failed to properly consider the law of privity of contract and the principled exceptions thereto.
[6] We do not accept this submission. It is entirely inconsistent with the appellant’s testimony at the mini-trial ordered by the motion judge during the summary judgment hearing:
Q. So, just so that we’re clear, this agreement that we’re talking about is this the agreement that you’re referencing in paragraph six [of the Statement of Claim], or - -
A. That’s correct.
Q. Okay. So the Defendants that you’re talking about would be Gemco Glenbarra Renewable?
A. Correct.
Q. Not Fovere?
A. Not Fovere.
[7] Second, the appellant contends that the motion judge failed to consider the law of assignments in equity, whereby an assignee takes “subject to the equities”.
[8] We disagree. The appellant did not raise this issue in his Statement of Claim or advance it on the motion for summary judgment. The motion judge cannot be criticized for “failing to consider” something that was not before him.
[9] Third, the appellant submits that the motion judge erred by not finding that the defendants were partners.
[10] We are not persuaded by this submission. We agree with the motion judge that, with respect to s. 15 of the Partnerships Act (“Every person, who by words spoken or written or by conduct represents himself or herself … as a partner in a particular firm”), “[t]he plaintiff was not aware of Fovere’s existence until 2011 or 2012 and thus long after he had agreed to work for Gemco in September or October 2010.” The legal relationship was between the appellant and Gemco, not the appellant and Gemco and Fovere.
[11] Fourth, the appellant contends that the motion judge failed to properly assess the credibility of the evidence.
[12] We disagree. The documentary record in conjunction with the mini-trial involving the testimony of the appellant and representatives from Gemco and Fovere provided an appropriate platform for the motion judge’s analysis and disposition.
[13] The appeal is dismissed. The respondent is entitled to its costs fixed at $15,000.00, inclusive of disbursements and HST.
“Doherty J.A.”
“J.C. MacPherson J.A.”
“P. Lauwers J.A.”