ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Meridian Credit Union Limited
Plaintiff
- and -
Ahmed Baig
Defendant
J. Anthony Caldwell,
for the Plaintiff/Respondent
Milton A. Davis,
for the Defendant/Moving Party
HEARD: August 5, 2014
F.L. MYERS J.
REASONS FOR JUDGMENT
Background
[1] Meridian Credit Union Limited was the first priority secured creditor of 984 Bay Street Inc. It held a mortgage on its debtor’s building at 984 Bay Street, Toronto. After the debtor defaulted on its loan obligations, Meridian commenced proceedings in which, among other things, the court appointed KPMG Inc. as Receiver and Manager (the “Receiver”) of the mortgaged building. In carrying out its mandate, the Receiver sold the building to the defendant Ahmed Baig for approximately $6.2 million. The Receiver did not know that prior to closing, Mr. Baig had purported to re-sell the building to Yellowstone Property Consultants Corp. (“Yellowstone”) for approximately $9 million. Had it known, the Receiver says, it would not have recommended approval of the sale to the court in the receivership proceeding. As Meridian did not recover the full amount owing to it in the receivership, the Receiver has assigned to Meridian its cause of action, such as it is, against Mr. Baig. Meridian brings this action against Mr. Baig seeking an accounting for the profit made by Mr. Baig on the re-sale to Yellowstone or, alternatively, damages for approximately $2.1 million for breach of contract, fraudulent misrepresentation, and conspiracy.
[2] Mr. Baig moves for summary judgment dismissing the claim in its entirety. Mr. Davis, counsel for Mr. Baig, submits that all of the relevant evidence is before the court so that there is no need for further proceedings and a decision on the merits in favour of either party is available. See: Whalen v. Hillier, 2001 24070 (ONCA). For reasons set out below, the defendant’s motion is dismissed. The precise relief to be granted as a consequence is more complex.
The Facts
[3] The Receiver was appointed to its role as an officer of the court by order made by the Hon. Justice Ground dated March 24, 2005. An order made by the Hon. Justice Greer dated June 2, 2005 authorized the Receiver to embark upon a marketing plan to sell the building.
[4] The marketing effort did not succeed. The highest offer received was for approximately $5 million. The outstanding debt due to Meridian at the commencement of the proceeding was over $5.4 million. Therefore, none of the offers received for the building was satisfactory to the Receiver or to Meridian as first secured creditor. Meanwhile, the Receiver was incurring operating costs of approximately $35,000 per month maintaining the building. In addition, the Receiver was incurring its own costs, costs of counsel, and the plaintiff’s loan was continuing to accrue interest. In the vernacular, the receivership was bleeding money and both the Receiver and Meridian were anxious to bring it to an end.
[5] The Receiver recommended that it embark upon a second effort to sell the building. This time, the process resulted in an offer to purchase from Mr. Baig, in trust for a corporation to be incorporated, for approximately $6.5 million. Upon conducting due diligence, Mr. Baig discovered approximately $600,000 in deficiencies in the building and offered to share those costs 50-50 with the Receiver. Accordingly, his offer was reduced by $300,000 to approximately $6.2 million.
[6] Mr. Baig’s offer was formalized in an agreement of purchase and sale with the Receiver dated December 19, 2005. The agreement contains a limited confidentiality clause. Despite Meridian’s complaints and suspicions, there is no evidence that Mr. Baig violated the confidentiality provision of the agreement of purchase and sale.
[7] Article 39 of the agreement of purchase and sale provided that Mr. Baig could assign the agreement to a corporation to be incorporated for the purposes of the sale with the Receiver’s consent which could not be unreasonably withheld. However, in respect of any other assignment, the Receiver had a consent right and its consent “may be arbitrarily withheld”.
[8] Mr. Baig’s evidence is that in his efforts to obtain financing for his purchase, he was introduced to the principals of Yellowstone who offered to buy the building from him. I note that it seems fortuitous that Mr. Baig came along and offered so much more for the building than had anyone else in the prior competitive process. Yellowstone then seems to have offered to purchase the building from Mr. Baig with no material due diligence and at a price that was almost double the prices offered during the competitive sales process run by the Receiver. Farley J. would have referred to these facts as “passing strange”. Nevertheless, the plaintiff has not made any effort to establish any wrongdoing on the part of Mr. Baig or any connection between Mr. Baig and Yellowstone despite these seemingly unusual circumstances.
[9] Mr. Baig was represented throughout his transaction with the Receiver and his transaction with Yellowstone by Miller Thomson LLP. Peter Kiborn was the partner of the firm in charge of the matter. Mr. Kiborn is no longer with the firm. Miller Thomson referred Yellowstone to separate counsel, Mr. Robert Cooper in Toronto.
[10] Mr. Kiborn determined that Mr. Baig would not have to pay land transfer tax on his purchase from the Receiver if title were directed by the Receiver straight to Yellowstone. However, Mr. Baig and counsel were concerned that the Receiver not learn of the sale to Yellowstone.
[11] There is no doubt that in business, information is power. The Supreme Court of Canada has recognized the value of confidentiality in negotiations (see Martel Building Ltd. v. Canada, 2000 SCC 60, [2000] 2 S.C.R. 860 at para. 66). Apart from the normal circumstances where any buyer would be reluctant to tell its vendor that there was another buyer available who would pay substantially more for the property, the fact that the sale occurred in a receivership is important. A receiver requires approval of the court to make a material sale of the debtor’s property. To obtain court approval, a receiver must establish that it engaged in a fair and commercially reasonable process to try to obtain fair market value for the property to maximize realization for the creditors. See: Royal Bank of Canada v. Soundair Corp., 1991 2727 (ONCA). If a Receiver learns that it has undersold property it can be in a very difficult position in which it is contractually bound to seek court approval for its sale but it must, at the same time, disclose to the creditors and to the court that it has not maximized realization. The creditors are not in a similar quandary. They have not entered into a contract to sell the property to the buyer and are free to oppose the sale if they do not believe that it is been carried out appropriately.
[12] In this case, Meridian, as the ranking secured creditor, was thrilled with the Receiver’s proposed sale to Mr. Baig at $6.2 million. Even if it had known that there was a possibility of the Receiver finding Yellowstone and negotiating a better deal with it, it is not clear that Meridian would have forsaken the bird-in-the-hand to do so. Counsel for Mr. Baig submits that it is unprecedented for a plaintiff who was thrilled with a sale to claim that it was defrauded. However, Meridian is plaintiff as assignee for the Receiver and is advancing the Receiver’s cause of action. In the receivership, there was a second secured creditor who stood to receive proceeds if any remained after Meridian was paid in full. Unsecured creditors remain unpaid behind the second secured creditor. Under the terms of its assignment from the Receiver, Meridian is required to pay over to the Receiver any proceeds that it realizes in this proceeding once it is paid in full. Any such funds will be available to the next ranking creditor(s). On the approval of a Receiver’s proposed sale, the court is concerned with the position of the last place creditor who will be partially paid as much as, or more than, the first ranking creditors who are to be paid in full. (The creditor that suffers only partial payment is sometimes referred to in the cases as the creditor at the Plimsoll line or the “Plimsoll creditor”). Even if Meridian was being paid in full, as submitted by Mr. Baig, the court would have been concerned with the possibility and availability of proceeds for the next secured creditor and the unsecured creditors. I have no doubt that the court would have sought the Receiver’s advice on the availability of proceeds for those creditors. The Receiver would not necessarily have had to engage in a full set of negotiations with Yellowstone had it known of Yellowstone’s existence. Rather, it could have simply negotiated with Mr. Baig to share a piece of his upside on his flip. But this all presupposes that the Receiver ought to have known about Mr. Baig’s sale to Yellowstone.
[13] Absent a contractual duty to disclose, I am not aware of any duty on Mr. Baig to disclose the existence of Yellowstone to the Receiver. There was no evidence before the court of the terms of any confidentiality agreement that might have been entered into by Mr. Baig at the outset of his involvement in the sales process. There is reference in the Receiver’s reports to the Receiver obtaining confidentiality agreements from prospective purchasers such as Mr. Baig. These types of confidentiality agreements often contain terms to protect the integrity of the auction process being run by the Receiver. However, no contractual terms were put before the court that limited Mr. Baig’s entitlement to re-sell or required him to disclose Yellowstone’s existence to the Receiver.
[14] The assignment clause in the agreement of purchase and sale did not prevent Mr. Baig from selling the property. As noted by counsel, Mr. Baig did not assign to Yellowstone his agreement of purchase and sale with the Receiver. Rather, he entered into a separate transaction to sell the property to Yellowstone. As noted above however, although Mr. Baig was engaging in two separate transactions, he could save land transfer tax on his own purchase of the property from the Receiver if he were to have the Receiver direct title to the property straight to Yellowstone. It is the efforts of Mr. Baig and his counsel in that regard that form the basis of Meridian’s complaints.
[15] In an internal memo dated December 19, 2005, Mr. Kiborn set out the issues for his colleagues as follows:
- transfers of beneficial interests in land are subject to LTT [land transfer tax] (exception for continuing affiliates);
• LTT is not payable if title is directed straight over to the flippee (but, the higher price being paid by the flippee will be shown on transfer and the LTT affidavit, so the flip will be apparent to the seller, unless you prepaid the LTT directly to the Ministry);
[emphasis added]
[16] In the normal course, real estate transaction documents include a land transfer tax affidavit in which the purchaser discloses the price paid and calculates land transfer tax payable. As noted in counsel’s memo, the price could be hidden from the vendor by entering into a direct agreement with the Ministry of Finance for the payment of the land transfer tax. Mr. Baig’s counsel, in fact, disclosed to the Ministry of Finance that there were two transactions which they proposed to close simultaneously by a direction of title straight to the ultimate purchaser, Yellowstone. Mr. Baig’s counsel points to this disclosure to show that Mr. Baig did not keep his second transaction a secret as one would expect were it dishonest or fraudulent. He ignores that the very purpose of the disclosure to the Ministry of Finance was to avoid the need to deliver a land transfer tax affidavit at closing that would have disclosed the transaction and its $9 million purchase price to the Receiver.
[17] As part of the land transfer tax planning Mr. Baig had to have the Receiver agree to direct title to Yellowstone. Had Mr. Baig disclosed that he had re-sold the property, he knew that his transaction was at risk. As counsel for Mr. Baig submitted quite forthrightly in court, had the Receiver known that Mr. Baig was likely to profit on a re-sale, he “probably would not have gotten the deal”. Had Mr. Baig tried to assign his agreement with the Receiver to Yellowstone, he would have run into the Receiver’s right to arbitrarily withhold its consent under article 39 of the agreement of purchase and sale. However, if the Receiver believed that Yellowstone was Mr. Baig’s non-arm’s length corporation incorporated for the purpose of closing the transaction, then under article 39 of the agreement of purchase and sale, the Receiver could not unreasonably withhold its consent to an assignment to that corporation. Mr. Baig’s counsel knew that in the normal course, one can expect a vendor to agree to direct title to such a corporation in lieu of an assignment.
[18] In order to carry out the land transfer tax plan without alerting the Receiver to the re-sale, Mr. Kiborn advised counsel for the Receiver that title was to be directed to Yellowstone on closing. It is clear from the evidence that the Receiver’s counsel assumed that Yellowstone was Mr. Baig’s corporation incorporated for the purpose of closing the transaction. In the first conversation, there was no specific representation made to the Receiver’s counsel concerning the status or ownership of Yellowstone. While the objective circumstances might well have led a reasonable person to conclude that Yellowstone was Mr. Baig’s corporation, I do not need to decide whether the Receiver’s counsel ought to have done more due diligence on this issue or whether the mere request for the direction was implicitly a representation. Had the matter simply ended with a single verbal request, the case would be very different. But, as follows, the efforts to conceal Yellowstone’s identity as a purchaser under a separate agreement of purchase and sale went much further.
[19] First, Mr. Kiborn delivered a draft title direction for the transaction to the Receiver’s counsel. He also delivered to the Receiver’s lawyers drafts of the other closing documents that were deliverables by Mr. Baig under the agreement of purchase and sale including: a purchaser’s undertaking to readjust, an indemnity re leases, a bring down certificate, a purchaser’s undertaking, an indemnity re goods and services tax, an undertaking to maintain records, and an environmental indemnity. Only the purchaser or its assignee would be entitled to or inclined to deliver the closing documents required of the purchaser. If Yellowstone was engaging in its own transaction with Mr. Baig, it would have had no basis whatsoever to provide any of those closing documents to the Receiver. Yellowstone had no contractual obligation to the Receiver to readjust, to indemnify the Receiver for GST, to indemnify it for leases, to indemnify for environmental issues or otherwise. Nor could Yellowstone, as an unrelated third party, bring down Mr. Baig’s representations to closing. In fact, there appear to have been no closing documents ever provided by Mr. Baig in which he fulfilled his contractual obligations to the Receiver. Rather, Mr. Baig and his counsel put forward Yellowstone as if it was doing so.
[20] I mused at the hearing of the motion as to whether by putting Yellowstone forward as the purchaser Mr. Baig was implicitly assigning the agreement of purchase and sale to it without the Receiver’s consent having first been obtained in breach of article 39 of the agreement of purchase and sale. An assignment would at least provide a basis by which Yellowstone could have provided Baig’s closing documents to the Receiver. Counsel for both parties declined to adopt this possible analysis.
[21] The draft title direction prepared by Mr. Kiborn and sent to the Receiver’s counsel in preparation for the closing of Mr. Baig’s purchase provided as follows:
TO: KPMG Inc., in its capacity as Court Appointed Receiver and Manager of the assets, property and undertaking of 8984 Bay Street Inc. and not in his personal capacity and without personal or corporate liability (the “Vendor”)
AND TO: [the lawyers for the Receiver]
Re: Yellowstone Property Consultants Corp. (the “Purchaser”) purchase of part of lots F and G, plan 891, City of Toronto, as in Instrument Number CA 30416 designated as PIN 21415-0079 (LT), municipally known as 984 Bay Street, Toronto, Ontario (the “property”) from that Vendor pursuant to an agreement of purchase and sale dated December 19, 2005 between the Vendor and Ahmed Baig in trust for a corporation to be incorporated (“Baig”) as amended February 15, 2006 in May 31, 2006 (the “Purchase Agreement”)
You are hereby authorized and directed to obtain a Court Order vesting title to the Property in favor of the Purchaser and this shall be your good and sufficient authority for so doing
DATED this day of , 2006 __________________________ Ahmed Baig
[emphasis added]
[22] Yellowstone is mis-described in this document. Yellowstone was not the purchaser in a “purchase … from the Vendor pursuant to an agreement … between the [Receiver] and Ahmed Baig in trust for a corporation to be incorporated”. Yellowstone purchased from Mr. Baig under a separate agreement. It is clear that the title direction describes Yellowstone as the purchaser from the Receiver which could only have been the non-arm’s length company incorporated by Mr. Baig under his agreement with the Receiver.
[23] Counsel for Mr. Baig submits that Mr. Kiborn was just sloppy. But the same definition is in the other closing documents that he delivered to the Receiver’s lawyers. Two further documents deserve specific comment. First, among the draft documents provided to the Receiver’s counsel was a resolution of the Board of Directors of Yellowstone which purported to authorize Yellowstone to purchase the building from the Receiver. Yellowstone had its own lawyer, Mr. Cooper, who apparently prepared this resolution. Why would Mr. Cooper prepare a resolution authorizing his client to purchase the property from the Receiver when his client was purchasing it from Mr. Baig and not the Receiver? The only inference available is that they were helping Mr. Baig to save land transfer tax by making it appear that Yellowstone was the non-arm’s length assignee of Mr. Baig incorporated for the purpose of closing the transaction with the Receiver. On closing, in error, Mr. Kiborn actually produced to the Receiver’s counsel, not only the false resolution, but the real corporate resolution of Yellowstone which indeed authorized it to execute a separate agreement of purchase and sale dated May 10, 2006 between Mr. Baig’s corporation, Bay-Wellesley Professional Centre Inc., as vendor, and Yellowstone. Mr. Baig’s counsel notes that this document was missed by the Receiver’s counsel at closing. He says there was no reliance on the documents because counsel admitted that at closing he was concerned principally, if not wholly, with obtaining the purchaser’s funds. However, that does not undermine the importance of the documents or the reliance placed upon them by the Receiver’s counsel in the transaction. It is clear, both from the Receiver’s counsel’s affidavit and from an understanding of transaction dynamics, that counsel negotiate the documents in draft prior to closing. As happened in this case, closing was attended to by law firm staff who check off documents received as compared to those expected. The fact that an additional, unexpected resolution was delivered in error does not undermine the negotiations among counsel that finalized the transaction documents and the reliance on those documents to allow the transaction to proceed to the formal closing.
[24] Finally, among the closing documents provided on behalf of Mr. Baig was a document registration agreement. That document is an agreement between the law firms directly. It creates the escrow terms so that funds can flow and electronic registration of title documents can occur at closing. In this case, it was necessary for Mr. Baig, as purchaser, to pay the land transfer tax at closing. (Recall that the payment was to be made under an agreement directly with the Ministry of Finance so the quantum of the Yellowstone purchase price on which tax was being paid would not be disclosed to the Receiver.) But Mr. Baig’s lawyers needed to obtain the funds from Yellowstone’s lawyer in order to close. Therefore, Mr. Kiborn agreed to act as Mr. Cooper’s agent for the purpose of the registration of the vesting order that conveyed title. On that basis, Mr. Kiborn entered into the document registration agreement with the Receiver’s lawyer on behalf of Yellowstone as purchaser. However, the agreement defines Miller Thomson LLP as the “Purchaser’s Solicitor” and defines the “Purchaser” as Yellowstone. Miller Thomson LLP was not Yellowstone’s lawyer. Mr. Cooper was Yellowstone’s lawyer.
Analysis
[25] The law is well settled that absent a duty of disclosure, silence or the failure to disclose material facts will not ground an action for misrepresentation (Arora v. Whirlpool Canada LP 2012 ONSC 4642 at para 196). Mr. Baig relies upon a useful statement made by Prof. Fridman in The Law of Contract in Canada, as cited by Montgomery J. in Marathon Realty Co. v. Ginsburg, [1981] O.J. No. 1140 (OHCJ)[^1] for this point as follows:
As opposed or contrasted with such instances of telling a half-truth or failing to correct a statement which has become untrue are cases in which there is complete silence not affecting in any comparable way something which previously or concurrently has been said. Such silence will not amount to misrepresentation (whether fraudulent or innocent) unless it relates to some material fact which there is a duty on the silent party to disclose to the other. A duty of this kind arises in the case of all contracts uberrimae fidei, i.e., where the parties must show the utmost good faith towards each other. If the subject matter of the contract is inside the category of matters in respect of which the utmost good faith must be shown, then there is an obligation to disclose. In other contracts, not involving such matters or a relationship that involves this duty, nondisclosure will not constitute fraud.
[26] Mr. Baig says that the Receiver’s lawyer drew its own conclusion that Yellowstone was Mr. Baig’s non-arm’s length corporation. No one ever made that representation specifically. However, in the paragraph preceding the above-quoted one, Prof. Fridman wrote the following (that was also relied upon by Montgomery J.).
A distinction must be made between a failure to disclose which in effect renders what has been stated a misrepresentation, and a failure to disclose which leaves anything said or written as true, but results in some misconception since the whole truth has not been told. The former kind of non-disclosure if done fraudulently is fraudulent misrepresentation. For this to occur there must be what Lord Cairns in Peek v. Gurney [(1873), L.R. 6 H.L. 377 at p. 403] described as 'some active misstatement of fact or, at all events, such a partial and fragmentary statement of fact as that the withholding of that which is not stated makes that which is stated absolutely false'. So, too, if the statement was true when made, but subsequently became untrue through a change which was known to the maker of the statement but not revealed by him to the representee, a dishonest failure to report the change may amount to fraud.
[27] Here, Mr. Caldwell for the plaintiff Meridian says that the court need not consider shades of misrepresentation. The title direction, the other closing documents, the corporate resolution, and the document registration agreement contained untrue statements. Mr. Kiborn admitted under cross-examination that he knew the statements in those documents were incorrect and he intended them to be relied upon by the Receiver’s counsel for closing. As such, Mr. Caldwell submits that he has made out an express case of fraudulent misrepresentation. I agree. However, there should be no suggestion that some lesser standard applied to the “mere” misleading documents in circumstances where there was no duty to disclose. Although Baig had no duty to disclose his flip, once his lawyers knowingly made misleading disclosures misrepresenting Yellowstone to be the purchaser under Baig’s agreement with the Receiver, the failure to correct the misimpression created amounts to fraudulent misrepresentation as well.
[28] Mr. Baig’s counsel submitted that since fraud was pleaded, the plaintiff bore an enhanced burden of proof beyond the balance of probabilities. The Supreme Court of Canada laid that argument to rest in F.H. v. McDougall, 2008 SCC 53 as follows:
[45] To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that in less serious cases the evidence need not be scrutinized with such care. I think it is inappropriate to say that there are legally recognized different levels of scrutiny of the evidence depending upon the seriousness of the case. There is only one legal rule and that is that in all cases, evidence must be scrutinized with care by the trial judge.
[46] Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is no objective standard to measure sufficiency. In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult as the task may be, the judge must make a decision. If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test.
[29] There is only one standard of proof. To make a finding on the balance of probabilities, the court must be satisfied that a fact is more likely than not to have occurred. Legal documents prepared by counsel for negotiation with counsel opposite are as formal, clear, convincing and cogent a source of representations as can be. While there was no initial duty on Mr. Baig to disclose his sale to Yellowstone, once Yellowstone was misrepresented as the purchaser, a duty arose to correct the misstatements. Merely providing Baig’s closing documents from Yellowstone was a misrepresentation that it had the right to provide those documents. The mis-descriptions that the documents contained were express representations of fact that were not true. Accordingly, I find on the balance of probabilities that it was fraudulently misrepresented to the Receiver that Yellowstone was Mr. Baig’s corporation incorporated to close the sale with the Receiver and that Baig and his counsel actively hid by such misrepresentations that Yellowstone was a third party purchaser from Baig. Were there an enhanced standard of proof applicable in light of the seriousness of the allegations of fraud, I would have found that standard met on these formal transaction documents in any event.
[30] Mr. Baig’s counsel agreed during the hearing that Mr. Baig is liable for any tortious misrepresentations made by his counsel on his behalf.
[31] Meridian’s counsel asks the court to refrain from dealing with its claim of conspiracy in order that this action may be joined with another action that has been brought by Meridian against Yellowstone. On the facts adduced by Meridian and Mr. Baig, Meridian has made out a prima facie case that Baig and Yellowstone and their counsel agreed to assist Mr. Baig to avoid land transfer tax by concealing the fact that Yellowstone was a third party buyer from Baig. The fact that both delivered documents that contained misrepresentations provides the unlawful means to make out the tort of conspiracy. However, this is just a prima facie case based on the evidence before the court to this point. Yellowstone should have an opportunity to present its facts and argue its case prior to any finding being made.
Causation and Damages
[32] There is no evidence that the Receiver could have obtained an agreement to sell the building at a price of more than $6.2 million had the misrepresentations not been made. The Receiver had already tried to sell the property in a full, public sales process that did not produce any offers near that level. Even had the Receiver contacted Yellowstone or asked Mr. Baig to share some of his profit, these possibilities represent just opportunities for gain. The Receiver and Meridian had a bird-in-the-hand. There is no evidence before the court on which an assessment can be made of the value of the opportunities or the likelihood of success.
[33] It may be, for example, that had Mr. Baig not made misrepresentations concerning Yellowstone, he would have just paid his own land transfer tax and closed with Yellowstone later. Looked at in this light, Baig may be accountable just for the tax that he saved.
[34] Moreover, there is some confusion in the evidence as to whether Mr. Baig learned of Yellowstone after signing his agreement with the Receiver or whether he submitted to the Receiver that he was partners with Yellowstone’s principal prior to even signing his agreement of purchase and sale with the Receiver. The degree of Mr. Baig’s involvement with Yellowstone, if any, may bear on both the question of whether Yellowstone might have been available to the Receiver as a bona fide third party bidder and it may also be relevant to the degree to which an accounting for profits ought to be a remedy available against Mr. Baig.
[35] Mr. Baig’s counsel submits that Meridian has not put its best foot forward on this summary judgment motion and should not be entitled to a second chance to prove causation and damages. However this ignores that the summary judgment motion was brought by Mr. Baig and not by Meridian. Meridian put its best foot forward to establish its response to Mr. Baig’s effort to have the claim dismissed. Meridian did not move for judgment for damages in response to Mr. Baig’s motion.
[36] Under Whalen, supra, and Hyrniak v. Mauldin, 2014 SCC 7, I find not only that Meridian raised a triable issue but, I am comfortable that this motion was a fair and efficient process to determine the issue of liability against Mr. Baig on the foregoing grounds. As noted at the outset, Mr. Baig’s counsel confirmed that there is no further evidence on liability. As I am dismissing Mr. Baig’s motion, I am required by the Supreme Court of Canada to seize myself of this matter to deal with outstanding issues. It seems to me that the parties should discuss and then seek directions from the court concerning the process for dealing with the remaining issues of causation and damages. The directions should also include a consideration of whether the action against Yellowstone should be proceeding in common with this action on notice to Yellowstone’s counsel.
[37] Accordingly, an order will go finding the defendant liable to the plaintiff for fraudulent misrepresentation in an amount to be determined by the court. Mr. Caldwell is directed to apply for directions at a case conference before me within 45 days concerning the steps to complete the action(s).
[38] If the parties cannot agree on costs, they may deliver written submissions, plus costs outlines, each at the same time, no later than five days prior to the case conference referred to above.
[39] All materials to be filed in respect of this action while under case management are to be provided as attachments to emails to my assistant. The attachments should be prepared in searchable pdf format with cases, if any, referenced by hyperlinks.
F.L. Myers, J.
DATE: August 15, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Meridian Credit Union Limited
Plaintiff
- and -
Ahmed Baig
Defendant
REASONS FOR JUDGMENT
F.L. MYERS J.
Released: August 15, 2014
[^1]: affirmed by the Ontario Court of Appeal, March 9, 1982, unreported; leave to appeal to Supreme Court of Canada refused 42 N.R. 180n