Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200108 DOCKET: C66794

Simmons, Benotto and Harvison Young JJ.A.

BETWEEN

Zaka Ullah Khan Plaintiff (Appellant/Respondent by way of cross-appeal)

and

Krylov & Company and Devry Smith Frank LLP Defendants (Respondents/ Appellant by way of cross-appeal)

Counsel: Zaka Ullah Khan, self-represented Bronwyn M. Martin and Visnja Jovanovic, for the respondent/appellant by way of cross-appeal Krylov & Company Louis P. Covens, for the respondent Devry Smith Frank LLP

Heard and released orally: December 13, 2019

On appeal from the order of Justice James Stribopoulos of the Superior Court of Justice, dated March 15, 2019, with reasons reported at 2019 ONSC 1666, 91 C.C.L.I. (5th) 70 and from the costs order, dated May 1, 2019, with reasons reported at 2019 ONSC 2714.

Reasons for Decision

[1] The motion judge dismissed the action pursuant to Rule 20, because he was satisfied that the action raised no genuine issue requiring a trial. In his submissions, Mr. Khan identifies a number of factual disputes and submits that a trial was required to resolve them. Those factual disputes include whether he actually signed the release, what occurred during his meeting at Krylov & Company and the length of this meeting. Mr. Khan submits that the motion judge should not have concluded that there was no genuine issue requiring a trial given these disputes.

[2] We agree that while these factual disputes exist, they are not material to the resolution of the action, and therefore, the motion judge did not err in concluding that there was no genuine issue requiring a trial.

[3] Mr. Khan’s claim as pleaded was entirely premised on his claim that his tort action had settled for an amount higher than $82,500, but that the respondents only forwarded the smaller sum to him and misappropriated the rest. The motion judge found that there was no evidence before him that could support the conclusion that the tort action settled for a greater amount, and that the money had been misappropriated by the respondents. Given this conclusion, the action could not succeed.

[4] The motion judge found that there was substantial evidence before him that the total value of the settlement was $82,500 and that there was no evidence that could displace this evidence.

[5] For these reasons, the appeal is dismissed. Leave to appeal the costs award is denied and leave to cross-appeal the costs order is also denied.

[6] Costs of the appeal are awarded to the respondent, Devry Smith Frank LLP in the amount of $2,830 on a partial indemnity scale including taxes and disbursements. No costs of the appeal are awarded to the respondent, Krylov & Company and no costs of the cross-appeal are awarded to Mr. Khan.

“Janet Simmons J.A.” “M.L. Benotto J.A.” “A. Harvison Young J.A.”