Court of Appeal for Ontario
Date: 2019-04-15 Docket: C65896
Judges: Lauwers, Pardu and Nordheimer JJ.A.
Between
Vadim Gordashevskiy Plaintiff (Appellant)
and
Ilya Aharon; Agora Holdings Inc. Defendants (Respondents)
Counsel
Brian P. Pilley, for the appellant
Ron Aisenberg, for the respondents
Heard: April 10, 2019
On appeal from: the judgment of Justice Jamie Trimble of the Superior Court of Justice, dated July 25, 2018.
Reasons for Decision
[1] On the record before us it appears to be clear that the respondent and purported borrower Agora Holdings Inc. received a transfer of $100,000 from the appellant on the security of the promissory note guaranteed by the respondent, Ilya Aharon.
[2] The motion judge dismissed the appellant's motion for summary judgment on the promissory note and guarantee, and then granted summary judgment in favour of the respondents.
[3] There is a clear conflict on the evidence of the appellant lender, the guarantor, Mr. Aharon, and the purported principal of Agora Holdings Inc., Ilya Kaplan. In his affidavit, Mr. Gordashevskiy says:
[Ilya Aharon] advised me with respect to one of these ventures, being Agora Holdings Inc. This was a private Ontario company which he controlled according to the information that he gave me. He stated that he needed start-up capital for this business.
[4] Mr. Aharon denies the evidence of Mr. Gordashevskiy: "I did not tell the Plaintiff that I "controlled" Agora." Mr. Kaplan says:
I was the sole incorporator of Agora. I have always been its sole director. Agora has no officers or employees.
The promissory notes signed purportedly on behalf of Agora by the Defendant Ilya Aharon ("Aharon") were signed without authorization by Agora.
[5] The motion judge notes simply: "The facts are not in dispute." The motion judge does not advert to this plain conflict in the evidence, a conflict that should have been resolved at a minimum by way of a mini trial under the summary judgment rules. He does not explain the basis on which he accepted the evidence of Mr. Aharon. While the motion judge correctly instructed himself on the test for summary judgment, he did not apply it by turning his mind to whether the credibility issues could be resolved without viva voce evidence.
[6] The endorsement contains what appears to have become boiler-plate language that we often see in summary judgment decisions:
In this case, the parties have agreed that all of the evidence that I need to make the necessary findings of fact, to apply the law to the facts, and to achieve a fair and just adjudication of the case on the merits, is before me. Therefore, inferentially, neither party suggests that any additional steps are necessary.
With respect, the assessment of whether other steps are required must be undertaken by the motion judge. Accepting the assurance of the parties is not the end of the inquiry. It is not open to a motion judge to simply prefer one affidavit over another in the absence of explanatory reasons for the preference that permit appellate review. That is not this case.
[7] We agree with the motion judge that the appellant's motion for summary judgment should be dismissed, although not for the reasons that he gave. Further, though, in our view it was not appropriate on this record to dismiss the action given the factual dispute. The judgment is set aside, without prejudice to the rights of either party to bring a motion for summary judgment on proper material.
[8] We would note, in passing, that the appellant would be well advised to take the motion judge's good advice, and amend the statement of claim so that it fully discloses the numerous causes of action the appellant identified in his factum and motion materials, but did not assert in his sparse pleading.
[9] The parties agreed that costs on the appeal would be fixed at $11,000 payable by the respondents to the appellant. Given the outcome, we would not change the costs award for the summary judgment motion.
P. Lauwers J.A.
G. Pardu J.A.
I.V.B. Nordheimer J.A.
