CITATION: Kutko v. Ouriadko, 2016 ONSC 686
COURT FILE NO.: CV-13-487297
DATE: 20160210
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
VOLODYMYR KUTKO
Plaintiff
– and –
MARIA OURIADKO
Defendant
Bohdan G. Matsura, for the Plaintiff
Maria Ouriadko, appearing in person
HEARD: January 26, 2016
LEDERMAN J.
nature of motion
[1] The plaintiff moves for a summary judgment for $92,100 representing repayment of loans made by him to the defendant.
[2] The defendant takes the position that there are serious issues of credibility at stake which can only be resolved through a trial and that the summary judgment motion process is inappropriate in the circumstances.
[3] This case turns basically on very little documentation and the only witnesses to the events in question are the plaintiff and defendant themselves. They have told their respective versions in their affidavits (including supplementary affidavits) and on the cross-examination on the defendant’s affidavit.
[4] In these circumstances, there are no genuine issues requiring a trial and the evidence presented on the motion is sufficient to permit the necessary findings of fact and credibility.
THE DIFFERENT VERSIONS OF THE PARTIES
a) The Plaintiff’s Version
[5] The plaintiff’s position is quite straightforward. He says that between September 15, 2008 and July 1, 2011, he loaned the defendant monies which totaled $131,100. The monies were advanced as follows:
(a) On September 15, 2008, the defendant borrowed from the plaintiff the sums of $20,000 and $17,000 (a total of $37,000) and promised to repay both amounts by January 15, 2009. She signed two promissory notes acknowledging the loans and repayment date. The defendant did not repay the loans on their due date but reassured the plaintiff that she would and asked for more time to rearrange her financial assets;
(b) On or about June 16, 2011, the defendant told the plaintiff that in order to repay the previous loans, she had to refinance one of her properties. She asked the plaintiff to lend her further monies that she would show on her bank account and would assist her to get better terms on refinancing. The defendant believed this was the only way to be repaid, and therefore loaned the defendant a further $25,000 through five bank transfers of $5,000 each. For the same purpose, on June 17, 2011, the plaintiff loaned the defendant a further $55,000 through eleven bank transfers of $5,000 each.
(c) On or about July 1, 2011, the defendant borrowed from the plaintiff, a further sum of $14,100 in cash. On the same day, the defendant wrote and signed a third promissory note acknowledging her indebtedness and promising to repay the plaintiff the sum of $94,100 by December 1, 2011.
[6] The defendant made several payments to the plaintiff between October 25, 2011 and April 16, 2012 through bank transfers repaying a total amount of $39,000 which were first credited to the initial loans. Accordingly, there remains a balance owing to the plaintiff by the defendant of $92,100 which is the amount claimed in this action.
b) The Defendant’s Version
[7] The defendant’s version of events is quite different. She acknowledges that she did receive the two loans totaling $37,000 from the plaintiff in 2008 and signed two promissory notes in respect thereof but claims that she repaid him in full in 2009.
[8] She acknowledges that in June, 2011 the plaintiff made a transfer of $80,000 into her account but asserts that these monies were not a loan. She states that a part of this amount (approximately $40,000) was money that the plaintiff wanted to “park” with her as he did not want to show such a large amount in his own bank account for certain reasons. The other part of the $80,000, according to the defendant, represented monies owing to her:
(a) payment to her of a $15,000 real estate commission that should have been paid to her initially for the work that she performed as an agent for the plaintiff in purchasing a property at 38 Pacific Avenue in Toronto;
(b) payment to her of approximately $8,000 for a deferred real estate commission owing to her when she acted on the sale of another property at 5791 Yonge Street in Toronto for him on May 1, 2011;
(c) payment to her for services provided to him as his power of attorney during his purchase of a condominium in April, 2011 and she claims that, as it was a time consuming service, she was owed $800;
(d) repayment by the plaintiff to her of a $15,000 deposit that she previously had made on his behalf on the purchase of a condominium.
[9] She denies that she borrowed $14,100 in cash from the plaintiff.
[10] She claims that the $39,000 that she repaid to the plaintiff was in respect of the monies that she was holding on his behalf.
[11] She also admits that she signed an undated promissory note acknowledging that she had borrowed $94,100 from the plaintiff and would pay it back prior to December 1, 2011 but argues that she signed it under duress. She states in her affidavit that she and the plaintiff were romantically involved. On one afternoon in October, 2011, she advised him that she no longer wanted to see him and shortly after that, the plaintiff attended at her home and applying physical force and uttering threats to her life, made her sign the promissory note of $94,100. It was written by her in the Russian language and was dictated to her by the plaintiff.
[12] In the end, the defendant submits that there are no monies owing to the plaintiff.
DISPOSITION
[13] The plaintiff’s case is corroborated by the three promissory notes signed by the defendant. On the other hand, the defendant’s explanation does not stand up to scrutiny. The defendant’s explanation that the third promissory note for $94,100 was signed under duress makes no sense. There is no logical connection between that promissory note and its specific amount and any failed romantic relationship. She made no timely complaint to the police or to anyone else about threats or being forced to sign this document. The defendant also made a point of the fact that the third promissory note is written in the Russian language in contrast to the prior two promissory notes which were in English. As a large part of the communications between the plaintiff and defendant took place in Russian, it is not that extraordinary that the third note was written in Russian.
[14] The defendant claims that some of the monies advanced to her in 2011 represented payment of real estate commissions. Although she alleges that the plaintiff had signed a buyer’s representation form and that she was his agent on the purchase of 38 Pacific Avenue (even though another real estate agent acted for the plaintiff on the transaction and was paid a commission) she has been unable to produce such an agreement form. There is no probative evidence to suggest that she was entitled to a $15,000 commission on this transaction. As well, there is nothing in writing to suggest that a commission of $8,000 on the sale of another property in May, 2011 was owing to the defendant by the plaintiff and its payment was to be deferred to a later time.
[15] Nor is there any invoice or other document to substantiate that the defendant was owed $800 for acting as the plaintiff’s power of attorney on the purchase of a condominium. The defendant was the plaintiff’s real estate agent on this transaction and was paid her commission in compensation for her services. There is nothing to suggest that she was entitled to further power of attorney fees.
[16] There is no evidence to support the defendant’s contention that $15,000 of the $80,000 transferred to her represented repayment of an earlier deposit that she made on behalf of the plaintiff. In fact, it appears that five days after she had made the deposit, she was repaid by the plaintiff by three bank transfers made to her personal account on April 25, 2011.
[17] In short, the defendant’s explanation for the total of $80,000 advanced to her in 2011 and the signing of an acknowledgment of $94,100 is not supported by any written document or any other corroborative evidence.
[18] Similarly, apart from her own say-so, there is no evidence in support of the defendant’s allegation that she repaid the first two loans in full in 2009 or to back up her claim that she made cash payments to the plaintiff in addition to those accounted for by him. She could provide no evidence of the amounts and dates of these alleged payments.
[19] The defendant’s version of events is simply not credible. The plaintiff has proven his case on a balance of probabilities and therefore is entitled to judgment in the amount of $92,100 plus pre-judgment interest in accordance with the Courts of Justice Act. The plaintiff will have his costs of the motion and the action fixed at $9,000, inclusive of disbursements and all applicable taxes.
Lederman J.
Released: February 10, 2016
CITATION: Kutko v. Ouriadko, 2016 ONSC 686
COURT FILE NO.: CV-13-487297
DATE: 20160210
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
VOLODYMYR KUTKO
Plaintiff
– and –
MARIA OURIADKO
Defendant
REASONS FOR JUDGMENT
Lederman J.
Released: February 10, 2016