ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-09-03908-SR
DATE: 20120405

B E T W E E N:

AMRITPAL SRAN

Mr. M. Dibua, for the Plaintiff

Plaintiff

• and -

SLADJANA NIKSIC also known as ANA NIKSIC

Ms. S. Keser, for the Defendant

Defendant

HEARD: September 14, 15, 16, 2011; January 30, 31, 2012

REASONS FOR JUDGMENT

Fragomeni J.

[ 1 ] The plaintiff, Amritpal Sran (Sran) claims as against the defendant, Sladjana Niksic also known as Ana Niksic (Niksic) payment of the sum of $17,000.00. Sran alleges that these funds were loaned to Niksic. Niksic contends that only $12,000.00 was given to her by Sran and that this money was a gift to her not a loan. The issue before the court at this trial is to determine how much money Sran gave to Niksic and whether those funds were advanced to her by way of a loan or by way of a gift.

TRIAL EVIDENCE

Amritpal Sran

[ 2 ] The parties have known each other since August 2003. They were co-workers at Hopewell Distribution Centre. Sran described their relationship as cordial and friendly.

[ 3 ] In the summer of 2008 Sran noticed that Niksic was sad so he asked her why. Niksic told Sran that her mother was sick and that she needed money. The next day Sran offered to assist Niksic and said he could offer her a $5,000.00 loan. Niksic told Sran the cost of her mother’s surgery would be 5,000-7,000 Euros. Sran had $5,000 and she accepted that amount as a loan.

[ 4 ] On June 25, 2008 Sran attended at the CIBC and withdrew $5000.00 in cash in $100 bills. Filed as Exhibit 1 is the withdrawal slip for this $5,000.00.

[ 5 ] Sran and Niksic met at Sherway Gardens at which time he gave her the cash. Niksic was very thankful.

[ 6 ] This loan for $5,000.00 was not reduced to writing as Sran trusted Niksic. Niksic agreed she would pay back the loan starting at the end of July at $1,000.00 per month.

[ 7 ] On July 13, 2008 at 9:00 p.m. Sran received a telephone call from Niksic to meet him at a Tim Horton’s close to her home. They did meet and Niksic had with her a real estate listing for a house for $150,000.00. Niksic needed funds to clear her debts so she could qualify for a mortgage.

[ 8 ] Sran told Niksic to redo her calculations as it did not appear she could afford this purchase. They met again the next day and Niksic asked Sran for $12,000.00. Sran agreed and on July 14, 2008 he gave her a certified cheque for $12,000.00. Exhibit 2 is a copy of the certified cheque dated July 14, 2008. Again this loan was not reduced to writing as they were close friends and he trusted her. According to Sran, Niksic agreed to pay this loan back commencing the end of July at $1,000 per month and she would provide him with post-dated cheques.

[ 9 ] After this second loan for $12,000.00 his relationship with Niksic changed. He felt like something was wrong as Niksic was ignoring him. Sran made efforts to talk to her. Sran filed as Exhibit 3, three text messages regarding his efforts to contact her.

[ 10 ] Sran and Niksic did eventually meet on August 14, 2008 at Sherway Gardens. Sran recorded the meeting without her knowledge. Exhibit 5 is a CD that Sran contends is a recording of this conversation. Sran testified that in this recording it is clear that Niksic admits that she received both the $5,000 loan and the $12,000 loan and that she would repay the loans at $1,000 per month.

[ 11 ] With respect to the recording, Sran had in his pocket a pocket recorder that was 90-minutes in length. Sran’s criminal lawyer, defending him on criminal charges relating to Niksic, asked Sran to convert this pocket recording into CD form. Sran testified that a friend of his assisted him in doing this. This friend did not testify at this trial. Of the 90 minute pocket recording the court heard 11 minutes and 9 seconds.

[ 12 ] Sran concluded his testimony in chief by advising the court that to date no payments have been made to him by Niksic on the $17,000 loaned to her.

CROSS-EXAMINATION OF SRAN

[ 13 ] Sran was cross-examined extensively about his relationship with Niksic. He confirmed that initially they were friends and friendly at work. They would see each other during the breaks at work and at lunch and they would talk about everything, even personal matters. From January 2007 to May 2008 he denies making inquiries about her personal life. Sran denies asking Niksic out on a date or for a coffee. He did not have her phone number. Sran denies that he ever asked Niksic to marry him. Sran denied as well that he proposed marriage to Niksic; that he made sexual advances to Niksic; that he blocked her car; that he followed her; that he called her.

[ 14 ] With respect to the $5,000 loan, Sran told Niksic that he needed the money because he was getting married and that’s why the money had to be a loan.

[ 15 ] After he gave her the $12,000, in June and July 2008 Sran denies that he approached Niksic to have a sexual relationship, to be boyfriend/girlfriend.

[ 16 ] In further cross-examination he testified that he first noticed the change in Niksic’s behaviour on July 20, 2008. Niksic started to avoid him. Sran was expecting his first payments on these loans at the end of July as promised by her. Sran again reiterated in cross-examination that he attempted to contact her but to no avail.

[ 17 ] Sran denied the suggestion that he told Niksic that since he has now given her the money she has to give him sex in return.

[ 18 ] Sran again stated that Niksic agreed to pay both loans together at $1,000 per month with the payments commencing at the end of July 2008. However, Sran was then asked about his testimony at the criminal trial with respect to the timing of the payments. The following exchange from that June 5, 2009 trial is relevant:

Q. You discussed a payment plan with her?

A. Yeah it was - - I - - payment was like this one. She said that this was the situation here. I have a debt. I said how your situation is? You situation look - - the way she talked and - - she looks back to me. I am in an uncomfortable situation and what you can do is - - she said if you buy a house she going to go on the rent and then you can give the payments back from that. I said you my friend. I’ll still - - do your calculations, sit at home then think about it, go and buy a property. Then she called in the morning and that’s how the communication happened between me and us at Tim Horton, then she called me in the morning and I gave her right? So that when I gave her the cheque that time I said to her, how you going to pay me? Or - - then I said, okay you can start from January. I’ll give you three more months, four more months. You can save a little bit, more for your money for yourself, and then you start paying ---.

Q. So the agreement between you, it was an oral agreement, an informal agreement, was that the payments would start January of ’09. So why were you concerned in the days and weeks following to ask her about the money if you weren’t expecting a payment for six months?

A. Because it’s a verbal thing sir.

Q. It was what?

A. It’s a verbal.

Q. But your evidence sir, as it was just to me, you weren’t expecting any payment until January of 2009. On July 14 th , 2008, you lend this person 12 thousand dollars. You told your lawyer when he asked you about it that there were phone calls that you started making right afterwards asked about the money, but you weren’t expecting any payment until January?

A. Alright. Now, if I have to sue her today, right, I’m going to sue her for 17 thousand.

[ 19 ] Sran agreed that at the June 5, 2009 trial he did state that the payments would start in January.

[ 20 ] From July 14, 2008 to August 30, 2008, Sran denied the suggestion that during that time he was harassing Niksic daily to coerce her in having sex with him and agreeing to a relationship of boyfriend/girlfriend. Sran denied that in return for giving her the money he expected sex.

[ 21 ] Sran was cross-examined extensively about the making of the CD recording. I will not review that line of inquiry in these reasons. I have determined that the CD recording is of such poor quality that it has no evidentiary value. Not only is it difficult to hear what the speakers are saying because they talk over each other at times but the CD has numerous times where it stops or cuts out and then starts again. Sran made it clear that this is not the full conversation. There are portions of the recording that were deleted and all that was left was 11 minutes 9 seconds played in court. Sran denied in cross-examination that the deleted portions would have been helpful to Niksic and that’s why he deleted them. Sran stated that it was an accident that portions of the recording were deleted. Sran could not recall the contents of the deleted portions of the conversation.

[ 22 ] In light of my determination that the CD has no evidentiary value on the issues I have to decide I will not review the cross-examination relating to the contents of the CD that was played at this trial.

[ 23 ] Sran was cross-examined about his criminal charges relating to Niksic. There were two trials. On June 5, 2009 Sran was convicted of failing to comply with Undertaking given to an officer in charge to abstain from communicating directly or indirectly with Sladjana Niksic except through counsel. He was also convicted of Utter a Death Threat. Sran was given a suspended sentence and placed on probation.

[ 24 ] Sran denied that these convictions are indicative of his harassing behaviour toward Niksic and stated that the harassment charge, dealt with earlier by the court, was in fact dismissed.

[ 25 ] In re-examination by his counsel on the issue of a January start for re-payment, Sran stated that because the amount of the loan went from $5,000 to $12,000 he was prepared to give her more time.

(Decision continues verbatim in original structure…)

Fragomeni J.

Released: April 5, 2012