COURT FILE AND PARTIES
COURT FILE NO.: CV 13-116647-00
DATE: 20140409
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Zubeda Inc., Applicant
AND:
2180129 Ontario Inc., Pace Developments Inc. and David Chong, Respondents
BEFORE: The Honourable Madam Justice S. E. Healey
COUNSEL:
Yadvinder S. Toor, for the Applicant
Patrick K. Martin, for the Respondents
HEARD: April 7, 2014
Endorsement
[1] The plaintiff moves for partial summary judgment in respect of its claim, seeking judgment in the amount of $345,816, without prejudice to its claim to further entitlement.
[2] I am unable to resolve the dispute over entitlement to this sum in a fair manner on the record before me. Accordingly, in accordance with the directions given in Hyrniak v. Mauldin, 2014 CarswellOnt 640, 2014 SCC 7, this is not an appropriate case in which to exercise the court's summary judgment power. In particular, the plaintiff has failed to show that there is no genuine issue requiring a trial with respect to its entitlement to payment of these monies for the following reasons:
The defendant disputes signing the agreement sought to be enforced by the plaintiff. Two agreements were purportedly signed, one dated January 5, 2012 and one dated January 9, 2012. The plaintiff seeks to enforce the latter. The plaintiff has not put its best evidence forward by providing an affidavit from its principal, Mohammad Rafiq, who was present when the agreement was purportedly signed by Dino Sciavilla, the president of Pace Developments Inc., in order to allow the court to evaluate the complete evidence going to the validity of the contract. The court currently only has Mr. Sciavilla’s evidence, who agrees that his signature appears on the January 9, 2012 agreement, but denies that he executed the document or agreed to the terms contained therein. No original has ever been produced by either party. Accordingly, whether the January 9, 2012 agreement was signed by Mr. Sciavilla is an issue that cannot be resolved on the record now existing, and will require an assessment of credibility once Mr. Rafiq’s evidence is available; and
Both versions are confusing and ambiguous in their terms. The agreement sought to be enforced confers a significant benefit on the plaintiff, and it is unclear on the plaintiff's evidence whether the defendants received any benefit under it. The respective rights and obligations of each of the parties is unclear, and therefore the plaintiff has failed to rebut the defendants' evidence that there was never a meeting of the minds. Evidence exists which supports the conclusion that the parties were abiding by the earlier agreement, such as the six deposit cheques bearing the date of January 7, 2012, and evidence also exists to support the conclusion that they were abiding by the later agreement, such as the payment by the defendant of 18 monthly instalments of $10,000 per month beginning on May 1, 2012. Viva voce evidence will be required to establish the intentions of the parties. Accordingly, on the record before me I am unable to conclude that there was ever a legal obligation on the defendant to pay the $345,816, in spite of the signed direction given to Mr. Chong.
[3] Despite to these deficiencies in the evidence, the defendants have acknowledged that under the terms of the "agreement", whichever agreement that may be, they were required to provide the net profit from the sale of the townhouses to the plaintiff on closing (see paragraph 9 of the affidavit of Dino Sciavilla sworn November 8, 2013). To that end, Mr. Sciavilla admits that he signed a Letter of Direction to his solicitor, Mr. Chong, to pay the net proceeds of sale to the plaintiff for each of the six townhouses. There is no evidence to contradict the amount disclosed in the Letter of Direction, confirmed by Mr. Chong on his cross examination, which is that the net proceeds were $345,816. Accordingly, on the evidence of the defendants alone, the plaintiff has advanced a strong prima facie case that that amount of money may be owed to it under the terms of an agreement that may have been struck between the parties. I am satisfied that this amount should therefore be paid into court until a final determination is made as to whether it is owed to the plaintiff, pursuant to Rule 20.05(2)(o).
[4] As a result of the statutory authority under Rule 20 to make the above order, I will not deal with the arguments made by counsel to secure the money by way of Mareva injunction or pursuant to Rule 45.02.
[5] There are three issues for trial:
Did the parties ever reach an agreement in respect of the six townhouses;
If yes, did either party breach the terms of the agreement; and
What is the appropriate remedy?
[6] Central to the dispute as to whether an agreement was reached will be the evidence of Mohammad Rafiq, who signed both agreements and who was a central party to the negotiations. Accordingly, this court orders that it is Mr. Rafiq who the plaintiff must produce for examination for discovery in this action.
[7] This court orders:
- The parties shall enter into a discovery plan within 20 days, to include the following terms:
(i) Affidavits of documents together with any Schedule A documents not yet produced shall be exchanged by May 31, 2014;
(ii) All examinations for discovery shall be completed by August 31, 2014;
(iii) Undertakings shall be answered by September 30, 2014;
(iv) All motions shall be heard by November 30, 2014, subject to the availability of a motion date; and
(v) The action shall be set down by December 31, 2014, subject to any outstanding motion not yet heard by that date.
The plaintiff shall produce Mohammad Rafiq for examination for discovery;
The defendants 2180129 Ontario Inc. and Pace Developments Inc. shall pay into court the sum of $345,816 within 30 days; and
If the parties are unable to agree upon the costs of the motion they may make written submissions not exceeding three double-spaced pages, including any offers on which they rely, as well as a Bill of Costs or Cost Outline, to be provided through my judicial assistant in Barrie. The plaintiffs submissions are due by April 18, 2014, the defendants by April 25, 2014, and any reply, if necessary, by April 29, 2014.
Healey J.
Date: April 9, 2014