CITATION: 6443923 Canada Inc., c.o.b. as Zesty Market v. Khodabandeh, 2015 ONSC 7465
COURT FILE NO.: 09-46138
DATE: 20151201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
6443923 CANADA INC. c.o.b. as ZESTY MARKET
Plaintiff/Defendant by Counterclaim (Responding Party)
– and –
ALIREZA KHODABANDEH
Defendant/Plaintiff by Counterclaim (Moving Party)
– and –
PARS EMPIRE NORTH AMERICAN INC., 1550499 ONTARIO LTD., ALI KARIMI (also known as Ali Kariminiaigheh) and NAVA VOSOUGH
Defendants by Counterclaim
Eric Lay, for the Plaintiff /Defendants by Counterclaim (Responding Party)
Ian McBride, for the Defendant /Plaintiff by Counterclaim(Moving Party)
HEARD: November 17, 2015
Beaudoin j.
reasons for decision
[1] The Defendant, Alireza Khodabandeh, (“Alireza”) brings this motion for summary judgment claiming there is no genuine issue requiring a trial.
Background
[2] Alireza was an employee of the Plaintiff, 6443923 Canada Inc. The Plaintiff’s business consists of operating a convenience store under the name of “Zesty Market.” The co-owners of the corporate Plaintiff are Mr. Ali Karimi (“Karimi”) and Ms. Nava Vosough (“Vosough”). Alireza was an employed at the Zesty Market from 2004 to February 2008. This action is based on allegations that the Defendant stole money from the Plaintiff while an employee. These allegations are found in the Amended Statement of Claim issued on September 3, 2009. The Plaintiff seeks general damages in the amount of $500,000 and aggravated, punitive and exemplary damages in the amount of $300,000.
[3] The Statement of Claim specifically alleges at paras. 7, 8 and 9:
7 The Plaintiff states on or about February 12, 2008, the Defendant was working at the Defendant’s store located on Elgin Street and was caught stealing money from the safe.
8 The Plaintiff states that the Defendant stole money from the Plaintiff at the rate of approximately $300 per shift totaling (BLANK)
9 The Plaintiff states that the Defendant did not reimburse the Plaintiff any money, even though asked to do so.
[4] This action was commenced following the arrest and charging of Karimi of several offences against former employees of the Zesty Market; namely Yashar Kablou (“Kablou”), Farzad Panahi (“Panahi”), and the Defendant Alireza. Separate actions have been commenced by the Plaintiff against Kablou and Panahi. After trial by judge and jury, Karimi was ultimately convicted on June 6, 2011 of five offences including attempted extortion against Alireza. That attempted extortion arose from Karimi’s allegations of theft against Alireza. Karimi knew that Alireza was gay and threatened to have him returned to Iran where he would be persecuted unless Alireza’s family gave him money.
[5] Alireza denies any theft from the Plaintiff whose case seems to rest on these points:
• On February 4, 2012, an envelope containing $920 was found inside the store safe at a time when the Defendant was managing the store. I am at a complete loss as to how I am to draw an inference that money found in the safe is evidence that there had been a theft, let alone by the Defendant.
• The examination for discovery of Nava Vosough was held on July 10, 2013. That examination revealed that the direct evidence upon which the Plaintiff is relying to base the allegations of theft against Alireza is that his lifestyle exceeds that which the Plaintiff believes he should be able to afford. His bank records reveal a few large deposits to his account that he has explained as gifts from his wealthy family in Iran. He also held other jobs and he had a partner. The presence of large amounts of money in his bank accounts cannot, in and of itself, constitute evidence of a theft unless there is evidence of a corresponding loss by the Plaintiff.
• An “expert” report was prepared by a forensic accountant. That expert report expresses no opinion and is of no use in determining whether or not there was a theft from the Plaintiff. All the expert did was compare figures that Karimi recorded on a spreadsheet to amounts deposited to the Plaintiff’s bank accounts. At his cross-examination, he agreed that he did not take any steps to verify the information that was provided in the spreadsheets prepared by Karimi. This is a good example of how the completion of a Form 53 (Acknowledgement of the Duty of an Expert) does little to enhance the reliability of an otherwise meaningless report.
• The Plaintiff has attempted to rely on the transcript of a telephone conversation between an individual by the name of Mohamed Zarie and Panahi when they were both in Iran. Zarei reported those conversations to Karimi in a series of telephone conversations and told Karimi that Panahi had made admissions relating to funds misappropriated from Zesty Market. Vosough claims she was present during those phone conversations between Karimi and Zarei. This evidence of misappropriation of funds is at the least double (if not triple) hearsay.
[6] Rule 20.02 (1) provides as follows:
EVIDENCE ON MOTION
20.02 (1) An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01 (4), but, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. O. Reg. 438/08, s. 12.
(2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. O. Reg. 438/08, s. 12.
[7] In this case, I draw an adverse inference from the failure on the part of the Plaintiff to provide any evidence from Zarei or Panahi. It must be noted that Panahi denied the version of events put forth by Zarei at the criminal trial.
[8] There is no evidence before me that either of the parties to that conversation will be providing evidence at the trial of this action. A criminal jury heard the evidence of those conversations and was not satisfied that there had been any theft.
[9] The sentencing decision of Justice L. Ratushny, although not binding, is relevant. Because the trial judge became unable to continue the proceeding shortly after the jury’s verdicts were delivered, the proceedings were continued before Justice Ratushny pursuant to section 669.2 of the Criminal Code. She read all of the trial transcripts and provided an extensive summary of the evidence that was put before the jury relevant to each finding of guilt.
[10] Mohammad Zarei testified on behalf of the Karimi and gave evidence about that recorded conversation between himself and Panahi. Justice Ratushny commented on his evidence as follows:
125 An additional problem with defence counsel’s position is that other than the allegations made by Karimi to the victims that they were thieves, and the bizarre evidence from Zarei of Panahi’s taped confession that was obviously accorded no weight by the jury, there was a complete absence of any trial evidence of reasonable justification or excuse or lawful authority. The defence did not offer any evidence of any theft from Karimi’s businesses. Of course, Karimi did not have to prove anything. That was for the Crown to do, and it did. It can be said that the Crown proved the absence of any theft. The jury, by reason of its guilty verdicts, has to be taken to have accepted the victims’ evidence that they were not thieves and that Karimi’s accusations that they were thieves was not reasonable justification, excuse or lawful authority for his crimes of extortion and harassment.
126 The jury heard ample evidence to lead them to the conclusion that there had been no theft committed by any of the victims or by anyone else. They heard that Karimi had gone to the Ottawa Police on February 20, 2008 about alleged thefts and was advised to get his paperwork in order. They heard nothing further about that paperwork.
127 The evidence was that Karimi ran a tightly controlled business, taking advantage of electronic monitoring and accounting procedures. He knew full well what was going on in his Zesty Market stores. It was not possible for hundreds of dollars, thousands of dollars, or tens of thousands of dollars to be missing without the triggering of an immediate paper trail. It was reasonable for the jury to conclude, if they did, that there was no paper trail because there were no thefts.
137 Karimi’s claims of theft and the amounts he demanded were absurd from the beginning and throughout the ten months he conducted his fear campaign against the victims. His witness, Zarei, was also absurd and it is evident from their verdicts that the jury rejected the evidence regarding Panahi’s confession to Zarei. I agree with the Crown that Zarei presented as a bizarre individual at trial.
[11] Despite the allegations of theft against the Defendant, he was never fired from his position. Karimi spoke at length with the police, but never provided them with any evidence of theft, and as noted, the allegation that a theft had occurred was rejected by the jury at Karimi’s trial.
[12] The limited financial records and income tax returns of the corporate Plaintiff do not demonstrate any pattern of loss. In short, there is no admissible evidence of any money having been stolen from the business by anyone, let alone by Alireza.
[13] The Responding Party to the motion for summary judgment is required to put their best foot forward in response to a motion for summary judgment and the court is entitled to assume that the record before the court is all the evidence that the parties will present at trial.[^1]
[14] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada has set out the test to be applied on motion for summary judgment at para 49:
49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[15] Here, there is no admissible evidence of any theft occurring at the Plaintiff’s premises at any time, let alone that any such theft was committed by the Defendant. I am satisfied that there is no genuine issue requiring a trial, and I need not resort to the fact-finding powers in rule 20.04 (2.1)[^2]. Summary judgment is granted and this claim against this Defendant is dismissed.
[16] I have the parties’ respective Costs Outlines. Absent any agreement, the successful Moving Party is to provide me with brief written submissions within 15 days of the release of this decision and the Responding Party, 15 days thereafter.
Mr. Justice Robert N. Beaudoin
Released: December 1, 2015
CITATION: 6443923 Canada Inc., c.o.b. as Zesty Market v. Khodabandeh, 2015 ONSC 7465
COURT FILE NO.: 09-46138
DATE: 20151201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
6443923 CANADA INC., c. o. b. as ZESTY MARKET
Plaintiff/Defendant by Counterclaim
– and –
ALIREZA KHODABANDEH
Defendant/Plaintiff by Counterclaim
– and –
PARS EMPIRE NORTH AMERICAN INC., 1550499 ONTARIO LTD., ALI KARIMI (also known as Ali Kariminiaigheh) and NAVA VOSOUGH
Defendants by Counterclaim
REASONS FOR decision
Beaudoin J.
Released: December 1, 2015
[^1]: Cuthbert v. T.D. Canada Trust, 2010 ONSC 830, 2010 CarswellOnt 867 [^2]: Canaccord Genuity Corp v. Pilot, 2015 ONCA 716