Court File and Parties
CITATION: Malik v. Ahmad, 2016 ONSC 6456
COURT FILE NO.: CV-15-3065-SR
DATE: 2016 10 14
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: ASIM MALIK, Plaintiff
AND:
MUZAFFAR AHMAD and ANSER AHMAD, Defendants
BEFORE: EMERY J.
COUNSEL: Domenic Saverino, for the Plaintiffs
Vishwapriya Tewathia, for the Defendants
HEARD: August 17, 2016
ENDORSEMENT
[1] The plaintiff Asim Malik and the defendant Muzaffar Ahmad worked together in a fast food restaurant, where they became good friends. They became such good friends that Asim advanced several amounts to Muzaffar totalling $75,000. Asim has brought this action against Muzaffar and his father, Anser Ahmad, claiming the funds advanced were a loan; Muzaffar and Anser have defended, saying Asim invested those funds with no promise of repayment.
[2] Asim now brings this motion for summary judgment for $52,700 against Muzaffar and Anser, representing the balance of the funds advanced after Anser repaid $22,300 on September 25, 2013. Asim relies upon this repayment as evidence that Anser knew the funds were a loan. He also relies on conversations he had with Muzaffar before he advanced funds, and various documents and promises from Muzaffar and Anser thereafter.
[3] There is no dispute that Asim advanced a total of $75,000 to Muzaffar starting in June 2013.
[4] Asim states that Muzaffar approached him to lend money to his father, Anser, to invest in a company owned and operated by Anser’s relative, Yasir Shad. Mr. Shad operated an investment circle directly or through his company, BelSha Investments Ltd. At no time did Asim have any dealings with Mr. Shad or BelSha Investments Ltd.
[5] Muzaffar states that Asim approached him to invest his money with Anser. According to Muzaffar, Asim hounded him for the opportunity to make an investment through his father because Asim believed him to be a savvy investor. There is no evidence that Asim spoke directly with Anser prior to, or in the course of, advancing the funds to Muzaffar. However, it is clear that Anser ultimately received those funds through Muzaffar. I accept that Muzaffar was acting as Anser’s agent at all material times.
[6] The court heard that in the fullness of time Anser invested funds totalling $530,000 with Mr. Shad. Anser entered into a settlement agreement on March 23, 2015 to extend the date for Mr. Shad to repay those funds by March 30, 2016. It would appear that Anser himself has been the victim of an investment scheme, and that he had pooled money from various sources to make his own investment with Mr. Shad.
[7] There was nothing in writing between Asim and Muzaffer or Anser about the nature of the transaction at the time it was made. However, the evidence filed on the motion proves on the balance of probabilities that the funds advanced by Asim to Muzaffar and Anser were a loan, and must be repaid.
Asim’s Evidence
[8] Asim gave the following evidence in his first affidavit filed in support of the motion:
a) The Defendants approached him in or around January 2013 to make them a short-term loan in the amount of $25,000.00, which funds were to be repaid with interest
b) Asim loaned the Defendants $25,000.00 pursuant to this request and promise to repay.
c) In June 2013, the Defendants requested a further short-term loan in the amount of $50,000.00, for which they promised to repay Asim.
d) Asim advanced the Defendants a further $50,000.00, pursuant to this request and promise to repay.
e) By August 2013, Asim had not received any payments from the Defendants as promised.
f) When Asim requested repayment from the Defendants, Muzaffar told him that he and his father were not in a position to repay the amount owed.
[9] On June 10, 2013, Muzaffar signed a document that contained the following words:
“I Muzaffar ahmad driver’s liceson # A3561-57108-80613 address 12 tahir st, Vaughan Ontario have borrowed a loan $50,000 from Asim Malik and I promise to pay the full amount without any conditions on the on the 20th of july 2013. if failed to do so, I will be held responsible for any legal action taken against me and as per my dad granter the house on 12 Tahir st is collateral against this loan.”
[10] On September 22, 2013, Anser repaid $22,300.00 to Asim by cheque dated September 25, 2013. The cheque was marked “investment settlement”. Anser and Asim also signed a document titled “Settlement”. This document read as follows:
SETTLEMENT
I, Anser Ahmad, paying you $22,300 cheque (number 068) from your total $75,000 invested money with Mohammed Yasir Shad. I am paying you this amount from my own resource (house) all I had.
As I already mentioned in my previous signed document and also in our conversation that I am pursuing Mohammad Yasir Shad for recovering yours and mine’s investment. As soon as I get your invested money with Mohammad Yasir Shad back from him, I will pay you.
By signing/accepting this, you are agreeing to this settlement.
Anser Ahmad Asim Malik
Date: 22 September 2013
[11] Asim swore a supplementary affidavit in which he deposed to the following facts to expand upon his previous evidence:
a) In or about November 2012 Muzaffar had approached Muneeb Ullah and himself to ask if they would lend him and his father money in exchange for a “healthy return”. Asim and Muneeb had known Muzaffar from high school.
b) Muzaffar advised them that he and his father would personally guarantee the return of the money, with “profit”.
c) Muzaffar approached Asim and Muneeb. Asim did not approach Muzaffar to invest money.
d) Asim did not know of Yasir Shad, nor had he met him at the time of the loan.
e) Asim was at no time advised about the business of Belsha Investments Ltd.
f) Asim was subsequently advised by Muzaffar that the money he and his father had borrowed from him had been lost in bad investments they had made. Muzaffar told Asim not to worry as he and his father would repay him in full.
g) Muzaffar signed a document promising to pay Asim $11,500.00 on February 7 for an investment of $10,000.00 made on January 7, and that he would receive a return of $22,200.00 on January 31 for an investment of $20,000.00 made on January 4. It is not clear from the document itself whether these funds are part of the $75,000.00 advanced, or to which year each repayment date relates.
h) Asim also exchanged text messages with Muzaffar showing that Muzaffar promised to make certain payments to Asim in January and February 2013.
i) Muzaffar sent an email to Asim dated June 20, 2013 in which he acknowledged receiving $50,000.00 from Asim as “an investment” and promising a return of $5,800.00 on the 20th of every month for a three month period. Muzaffar stated in that email that he was fully responsible for the money invested and the interest payable to Asim on the 20th of every month. The “interest” of $1,500.00 was payable on each May 20, June 20 and July 20.
[12] Asim also obtained affidavits from Muneeb Ullah and Umesha Pushparajah. Muneeb deposed that he was present at a meeting between Anser and Asim at Anser’s residence on September 22, 2013. Muneeb states that Anser admitted to owing Asim $52,700.00 at this meeting. This was the balance owing from the loan after Anser paid $22,300.00 to Asim towards the debt.
[13] Umesha Pushparajah deposed that she worked along with Asim and Muzaffar at Burger King in 2014. Umesha states that she was present during many conversations between Asim and Muzaffar concerning this indebtedness. Umesha states that Muzaffar admitted to her that he and his father borrowed money from Asim. Umesha states that Muzaffar confirmed they owed the money to Asim.
[14] Asim states that the evidence on the motion shows:
a) That Muzaffar approached Asim to make Muzaffar and his father a loan.
b) The funds advanced by Asim to Muzaffar was a loan. Muzaffar promised to repay Asim personally and as an agent for his father, Anser, before the funds were advanced.
c) Anser acknowledged that the funds advanced were a loan when he made a partial repayment of $22,300.00 to Asim in September 2013.
d) Anser acknowledged in writing that he would repay Asim the balance of the loan.
e) Anser acknowledged the debt owing for the balance of the loan to Asim when Muneeb was present.
Defendants’ Evidence
[15] The Defendants have denied the allegations in the statement of claim relating to the transaction in their statement of defence. They specifically deny that Asim loaned them $50,000.00, as alleged. The statement of defence contains no allegations of material fact in support of this denial.
[16] The Defendants each swore an affidavit in response to the motion for summary judgment. Anser deposed to the following facts in his affidavit:
a) He retired from Sui Northern Gas Pipelines Ltd. in Lahore, Pakistan in August 2012. His nephew, Yasir Shad in Woodbridge Ontario convinced him to invest in his property business known as Belsha Investments Ltd. Anser therefore invested his retirement money, proceeds from the land he sold in Lahore and also some equity he took from his home at 15 Tahir Street in Maple, Ontario to invest with Mr. Shad.
b) His son, Muzaffar, was working with Asim and Muneeb at a Wendy’s located in Maple, Ontario. They asked Muzaffar to have Anser invest their money in Yasir Shad’s business. Asim had become aware through Muzaffar that his father was making investments with Yasir Shad in November 2012.
c) Anser collected their investment and delivered it to Yasir Shad to include in the investment circle
d) The funds were delivered along with Anser’s funds to Yasir Shad and were included in a settlement agreement dated December 18, 2013 between Anser and Yasir Shad. In this agreement, Anser is described as the “Lender” and Yasir Shad is described as the “Borrower”.
e) After certain payments were delayed between May and July 2013 by Yasir Shad, Yasir Shad declared that all the investments he had invested, including Anser’s money and Asim’s money, had turned out badly and were lost.
f) After Anser disclosed the lost investments to Asim, Asim and Muneeb visited Anser at his house and took him and Muzaffar outside. It was after sitting in Asim’s car that Muzaffar felt pressured to sign and acknowledge the loan, and then promised to repay the funds to Asim on June 20, 2015. This is the document that Muzaffar signed dated June 10, 2013.
g) Since Yasir Shad was his nephew, Anser felt a moral responsibility to return some of Asim’s money to him. Therefore, he attended the meeting on September 23, 2013 with Asim and Muneeb to provide a cheque for $22,300.00 to Asim. The document titled “Settlement” is attached to Anser’s affidavit as an exhibit and he does not deny signing it.
h) Anser states that he made it clear to Asim and Muneeb on that occasion that the partial repayment of $22,300.00 did not represent an acknowledgment that he was personally responsible for any losses suffered by either of them.
i) Anser and Yasir Shad signed a second settlement agreement dated March 23, 2015 to extend the time for Yasir Shad to repay Anser $530,525.00 without interest on or before March 30, 2016. In this settlement agreement, Anser is again described as the “Lender” and Yasir Shad is described as the “Borrower.
[17] Muzaffar’s affidavit states that he had no knowledge about Yasir Shad’s business. Despite the fact he had no information about the business, Asim and Muneeb asked him to ask his father if they could invest funds with Yasir Shad.
[18] Muzaffar states that his role during all of the investments was to pass communications from Asim and Muneeb to his father.
[19] Muzaffar also deposes that once Asim stopped receiving a return from the funds advanced, Asim started to pressure him to return all funds. Muzaffar states that he was pressured to sign the document on June 10, 2013 on one such occasion.
[20] Muzaffar states that he did not admit to personally owing Asim any sums of money, nor does he acknowledge that he promised to repay him $50,000.00 at a later time.
Decision
[21] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, 2014 S.C.C. 7 clearly stated the intent behind Rule 20.04(2)(a) that motions for summary judgment must be granted whenever there is no genuine issue requiring a trial. Justice Karakatsanis defined the test at paragraph 49 that there will be no genuine issue requiring a trial where the judge hearing the motion is able to reach a fair and just determination on the merits of a motion for summary judgment when the process:
allows the judge to make the necessary findings of fact;
allows the judge to apply the law to the facts, and;
is a proportionate, more expeditious and less expensive means to achieve a just result.
[22] The test to determine whether there is a genuine issue requiring a trial reflects not only the intent behind the language found in Rule 20.04, but also the direction under Rule 1.04 that the Rules of Civil Procedure shall be liberally construed to secure the just, most expeditious and least expensive determination of a civil proceeding on the merits. These Rules are intended to provide a greater access to justice. The Rules are also intended to enhance the opportunity of parties to a civil action to achieve a result on a more timely and affordable basis if the circumstances are appropriate for the resolution of issues by summary judgment.
[23] I am confident that I can fairly resolve the issues in dispute on this motion by the evidence filed in affidavit and transcript form by the parties in support of and in response to the motion. The fact situation in this case is not complex. It was not suggested that there may be any better evidence to be given later at a conventional trial than the evidence on the record for this motion. This case is well suited for adjudication on the merits as a motion for summary judgment.
[24] The parties are expected to put their best foot forward on the existence or non-existence of material issues to be tried: Combined Air Mechanical Services Inc. v.Flesch, 2011 ONCA 764 at par. 56 (reversed on other grounds); and Transamerica Life Assurance Co. v. Canada Life Assurance Co.(1996), 1996 7979 (ON SC), 28 O.R. (3d) 423 at par. 434. The motion proceeded on the basis that the parties had filed all evidence on the motion that could be called at a trial. I therefore had all of the evidence before me to make the necessary findings of fact or to draw reasonable inferences that the evidence would support. The evidence as a whole also allowed me to evaluate the credibility of one or more parties using the powers given to the court by Rule 20.04 (2.1) to decide the core issue: whether the funds advanced by Asim were a loan for Muzaffar and Answer to repay.
[25] The enhanced fact finding power to assess the credibility of evidence given by adverse parties on a motion for summary judgment must be exercised carefully. It is necessary to consider the evidence given as a whole to assess credibility. Care must also be taken to ensure that evidence given in an affidavit is not taken in isolation from the greater context of the facts to create an unfairness: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450.
[26] I find as a fact that Muzaffar was acting as an agent for his father when he approached Asim and Muneeb to invest money. This finding is supported by the evidence given by Asim and by Muneeb in their affidavits, and confirmed by Anser’s own evidence that he would repay Asim.
[27] I find as a fact that Muzaffar approached Asim to obtain money for Anser to invest in Mr. Shad’s endeavour. Asim did not pursue Muzaffar to seek an investment opportunity with his father or through his father with a third party. Asim clearly did not have funds available to invest as indicated by the various payments he made to Muzaffar or to Anser to make up the $75,000. There is no evidence that Muzaffar or Anser provided Asim with the details of the investment that would support the view that Asim knew of the ultimate use of the money or where Anser proposed to place it for investment purposes.
[28] I do not find any of the evidence given by Asim or by Muzaffar or Anser in their cross-examinations to support the positions taken by the defendants that the funds advanced were a loan. Anser testified under cross-examination (at page 27) that he would take the funds from Asim and invest with Yasir Shad, and then return those funds within 30 days, with a profit of 10 per cent. Asim testified at pages 27 and 28 of his transcript that it may have been an investment for Anser to make with Yasir Shad, but he was making a loan of those funds to Anser. Asim confirmed the nature of this transaction as a loan under cross-examination, and he did not falter in giving that evidence.
[29] I find as a fact that Asim advanced the full $75,000 to Muzaffar and Anser as a loan, and not as an investment. I make this finding of fact because of Asim’s evidence that he made the nature of the transaction clear to Muzaffar at the time of advancing payment. The document that Muzaffar signed, followed by his stated intentions to repay specific amounts to Asim, with profit, by specific dates in January and February 2013 and later in a text he sent to Asim on June 20, 2013 is evidence of a creeping enticement for Asim to lend more and more money to the Ahmad’s on their promise he would receive greater rewards.
[30] I further find that the evidence supports the finding that Asim loaned the money to Muzaffar and Anser because Anser acknowledged the funds were a loan when he met with Asim and Muneeb on September 22, 2013. This finding is reinforced by the evidence that Anser provided Asim with a cheque for $22,300.00 from his own funds to repay him against the total amount outstanding.
[31] Asim is therefore granted judgment in the amount of $52,700.00 against the defendants, Muzaffar Ahmad and Anser Ahmad jointly and severally. Asim is also granted pre-judgment interest under the Courts of Justice Act on that amount since September 22, 2013.
[32] Asim may seek costs of this motion by filing written submissions on or before October 28, 2016. Muzaffar and Anser shall have until November 10, 2016 to file written submissions in response. All written submissions shall consist of no more than two pages, not including a bill of costs and any offers to settle. No reply submissions shall be permitted without leave. All written submissions may be made by fax to my judicial assistant, Ms. Priscilla Gutierrez, at 905-456-4834 in Brampton.
Emery J.
Date: October 14, 2016
CITATION: Malik v. Ahmad, 2016 ONSC 6456
COURT FILE NO.: CV-15-3065-SR
DATE: 2016 10 14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ASIM MALIK, Plaintiff
AND:
MUZAFFAR AHMAD and ANSER AHMAD, Defendants
BEFORE: EMERY J.
COUNSEL: Domenic Saverino, for the Plaintiffs
Vishwapriya Tewathia, for the Defendants
ENDORSEMENT
Emery J.
DATE: October 14, 2016