MOBILE ZONE INC. ET AL v. NET CONNECT INSTALLATION INC., 2016 ONSC 7486
COURT FILE NO.: CV-14-0288
DATE: 20161130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NET CONNECT INSTALLATIONS INC.
Plaintiff
– and –
MOBILE ZONE INC., MOHAMMAD SHAHZAD and SWATI DAMLE
Defendants
AND BETWEEN:
MOBILE ZONE INC., MOHAMMAD SHAHZAD and SWATI DAMLE
Plaintiffs by Counterclaim
– and –
NET CONNECT INSTALLATIONS INC., ICT NORTH INC., WAYNE LAPLANTE and CHARLEEN WUNDERLICH
Defendants to the Counterclaim
Christopher Salazar, Counsel for the Plaintiff/Defendants by Counterclaim
Trent Morris, Counsel for the Defendants/Plaintiff by Counterclaim
Trent Morris, Counsel for the Defendants/Plaintiff by Counterclaim
Christopher Salazar, Counsel for the Plaintiff/Defendants by Counterclaim
HEARD: April 28, June 30, July 21, 2016
REASONS FOR DECISION
DiTOMASO J.
INTRODUCTION
[1] The Plaintiff, Defendant by Counterclaim, Net Connect Installations Inc., and the Defendants by Counterclaim, ICT North Inc., Wayne LaPlante and Charleen Wunderlich (collectively the “Moving Parties”), bring this motion for, among other things, summary judgment pursuant to Rule 20 of the Rules of Civil Procedure in favour of the Moving Parties and dismissal of the Counterclaim. The Moving Parties further seek to transfer, join and obtain judgment in Barrie Small Claims Court, file number 1598-14.
[2] The Defendants, Plaintiffs by Counterclaim, Mobile Zone Inc., Mohammad Shahzad and Swati Damle (collectively the “Responding Parties”), allegedly breached a contract with the Moving Parties and unlawfully misappropriated funds owing to the Plaintiff, diverted those funds to Pakistan and/or out of the jurisdiction of Ontario, and have pursued a Counterclaim against the Moving Parties on the basis of alleged fabricated oral Agreements and alleged oral Contract terms, of which the Moving Parties assert there is no evidence or conduct by the Parties which could support a finding of the existence of those alleged oral Agreements or alleged Contract terms. The Moving Parties maintain that they are owed monies (amongst other things) by the Responding Parties and also seek repayment of loans giving rise to the Small Claims Court action.
[3] The Responding Parties and the Moving Parties were working together with Shaw Communications for the sale and installation of Shaw satellite services in Ontario. The Responding Parties assert this was a joint venture. The Moving Parties deny any such arrangement. The Responding Parties contend that Net Connect had secretly sought and obtained its own dealership from Shaw. They maintained that in early 2014, the Moving Parties began steadily migrating sales away from the Shaw Agreement, misappropriated sales commissions to Net Connect directly from sales made by Mobile Zone, and withdrew money from Mobile Zone’s Bank Account that belonged to Mobile Zone. It is alleged that they did this in anticipation of the expiry of a non-competition agreement with Bell that Mr. LaPlante had signed and which was to set to expire on February 15, 2014. The Responding Parties allege that Net Connect breached its fiduciary duty to them and breached the contract between the parties. They maintain that Net Connect is required to disgorge its secret profits.
[4] The Moving Parties assert there was no secret agreement and that they were free to contract with Shaw or any other party for their own account.
[5] The Moving Parties submit that this is an appropriate case for summary judgment. The Responding Parties do not agree.
OVERVIEW
The Parties
[6] The Moving Party, “Plaintiff, Defendant by Counterclaim, Net Connect Installations Inc. (“Net Connect”) is an Ontario corporation in the business of selling and installing satellite services to new Shaw Communications customers.
[7] The Moving Party, Defendant by Counterclaim, Charleen Wunderlich (“Wunderlich”) is and was at all material times the leading mind of Net Connect.
[8] The Moving Party, Defendant by Counterclaim, ICT North Inc. (“ICT North”) is an Ontario corporation which was, at all material times, in the business of installing satellite cable systems.
[9] The Moving Party, Defendants by Counterclaim, Wayne Laplante, is the leading mind of ICT North and is the married spouse of Ms. Wunderlich.
[10] The Responding Party, Defendant, Plaintiff by Counterclaim, Mobile Zone Inc. (“Mobile Zone”) is an Ontario corporation that was, at all material times, in the business of selling satellite cable equipment to new Shaw Communications customers by means of telemarketing from call centres in Pakistan.
[11] The Responding Parties, Defendants, Plaintiffs by Counterclaim, Swati Damle (“Damle”) and Mohammad Shahzad (“Shahzad”) are, and were at all relevant times, the leading minds of the Defendant, Mobile Zone. Mr. Shahzad is admittedly a sophisticated businessman with an MBA.
[12] The Defendant in Barrie Small Claims Court File No. 1598-14, Systec Communications Inc. (“Systec”), is an Ontario corporation under the control of Ms. Damle and Mr. Shahzad in the business of selling satellite cable services through means of telemarking.
[13] Telus Network Private Limited (“Telus”) is a Pakistan corporation which is allegedly under the control of Mr. Shahzad. Mr. Shahzad never disclosed the existence of this corporation or his control over it prior to litigation commencing.
Systec and ITC North Business History
[14] From or around 2007 to 2012, Systec and ICT North engaged in a business agreement whereby Systec sold satellite cable packages for Bell Canada and ICT North oversaw the installation process.
[15] Systec is not a plaintiff in these proceedings. However, Systec is a Defendant in the Small Claims Court action.
Net Connect and Mobile Zone Agreement
[16] In or around June of 2012, Mobile Zone and Net Connect entered into an agreement whereby Mobile Zone would be dedicated solely to selling satellite packages and Net Connect would install the equipment required for those satellite packages (the “Agreement”). The Parties agree that the Agreement between them for the Shaw sales was not in writing.
[17] However, the following is a non-exhaustive list of express or implied terms of the Shaw Agreement in which the Moving Parties allege that the contract was carried out by all of the parties at all times:
(a) Mobile Zone would sell Shaw satellite cable packages through telemarketing means;
(b) Mobile Zone would be exclusively entitled to the sales commissions paid by Shaw for the sales made by Mobile Zone;
(c) Net Connect would purchase all necessary satellite equipment upfront and would be reimbursed for those purchases by funds provided by Shaw which were specifically earmarked as equipment cost reimbursement payments;
(d) Net Connect would oversee all installation of the satellite equipment for sales made by Mobile Zone;
(e) Net Connect would be exclusively entitled to the installation fees paid by Shaw;
(f) A contract would be entered into between Shaw and Mobile Zone;
(g) Net Connect was not bound to operate only in the Shaw Agreement, to deal only with call centres connected to Mobile Zone or to abstain from seeking its own contract with Shaw;
(h) Funds owing from Shaw for the sale and installation of the satellite cable packages would be paid into a bank account registered to Mobile Zone; and
(i) Immediately after funds owing and payable to Net Connect were received from Shaw by Mobile Zone, those specific funds would be immediately paid out to or withdrawn by Net Connect.
[18] The Responding Parties maintain that the parties differ on the terms of the Shaw Agreement. In particular, the Responding Parties allege that Net Connect would not compete with Mobile Zone by obtaining a Shaw license or using a call centre. The Moving Parties submit that the Agreement with the Responding Parties was not a joint venture agreement. Net Connect had no knowledge or control of Mobile Zone’s sale processes, Mobile Zone had no knowledge or control of Net Connects installation or sales processes and revenues, assets and expenses were not shared between Net Connect and Mobile Zone.
[19] On or about June 25, 2012, Mobile Zone and Shaw formalized the Shaw Agreement (the “Shaw Agreement”).
[20] The Parties proceeded pursuant to the Agreement between themselves with some modifications. The Responding Parties assert that there were two other oral agreements between the Parties – in March 2013 and IN November 2013 which introduced new and different terms amending the oral June 2012 Agreement between the parties.
[21] In December 2013, Ms. Wunderlich had direct access to the Mobile Zone Bank Account. In February of 2014 her access was suspended and the Responding Parties moved monies from the Mobile Zone Bank Account. The Responding Parties claim they are entitled to those funds. The Moving Parties claim that those funds belong to the Moving Parties which funds were fraudulently moved to Pakistan by the Responding Parties. The Responding Parties, in particular, Mr. Shahzad, claim the monies belonged to them.
[22] The Moving Parties deny that there were any oral Agreements with the Responding Parties in March 2013 or in November 2013 and further allege that these were fabricated Agreements to justify or explain the wrongful actions of the Responding Parties in the depletion of the Mobile Zone and Systec Bank Accounts.
Emergency Injunction
[23] An emergency motion for a Mareva Injunction and to obtain funds held by Shaw was heard on an ex-parte basis on March 11, 2014, before the Honourable Justice S. Healey who granted the interim relief sought against the Responding Parties.
[24] Justice Healey’s Order was continued by various Orders of the Court until it was continued on consent by my order on June 25, 2014, pending further Order of the Court.
[25] On June 25, 2014, Justice Healey’s Order was continued by my further Order on consent until further Order of the Court reducing the security amount from $150,000 to the sum of $100,000.
[26] Pursuant to the Order of Justice Healey, Shaw paid to HGR Graham Partners LLP funds payable to Mobile Zone to hold in trust. To date, the amount held is approximately $64,101.49, including accrued interest.
Depletion of Mobile Zone and Systec Bank Accounts
[27] Net Connect claims damages for amounts owing to it in the amount of $155,863.32. Further, the Moving Parties claim the amount of $21,000 in unpaid loans owed to them by the Responding Parties being the subject of the Barrie Small Claims Court action.
[28] The Responding Parties commenced a claim by way of Counterclaim where damages are claimed in the amount of $331,297.19 by the Responding Parties against the Moving Parties. The basis of the Counterclaim relates to allegations that the Parties were involved in a joint venture, that Net Connect was prohibited from contracting with third party telemarketing sales companies and that the March and November agreements bound Net Connect to share in the operating losses of Systec moving forward. The Moving Parties deny any such oral agreements and further deny that they induced a breach of the Shaw Agreement by Shaw. The Moving Parties submit that the Counterclaim has no merit and is based on fabricated agreements designed to falsely explain the conduct of the Responding Parties depleting bank accounts, moving monies owed to the Moving Parties out of the jurisdiction to avoid paying monies rightfully owed to the Moving Parties.
[29] The Moving Parties seek Summary Judgment in accordance with relief sought in the Notice of Motion. The Responding Parties request that the Motion for Summary Judgment be dismissed. In the alternative, the Responding Parties seek dismissal of the Plaintiffs’ action, dissolution of the injunction and damages in the amount of $182,577 plus interest and costs. The amount claimed is the alleged disgorgement of profit from breach of Net Connect’s alleged breach of its fiduciary duty.
ISSUES
[30] The overarching issue to be decided on this Summary Judgment Motion is whether there is a genuine issue requiring a trial. In order to answer this question, the following issues must be decided:
(i) Did Net Connect comply with all terms of the Agreement, thereby, entitling it to the damages it seeks?
(ii) Is the business arrangement between Net Connect and Mobile Zone a Joint Venture as alleged by the Responding Parties?
(iii) Did the Agreement contain any restrictive terms such as a non-competition clause with other sales business and/or Shaw?
(iv) Did Net Connect induce a breach of contract between Mobile Zone and Shaw?
(v) Was the alleged March 2013 Agreement reached?
(vi) Was the alleged November 2013 Agreement reached?
(vii) Should Barrie Small Claims Court File No. 1598-14 be transferred to the within proceedings and Judgment entered against the Responding Parties for the loans made May and June 2012 and January 2013?
POSITION OF THE PARTIES
Position of the Moving Parties
[31] The Moving Parties submit that they are owed monies by the Responding Parties as a result of the June 2012 Agreement between the Parties and the subsequent Shaw Agreement formalized between Shaw and Mobile Zone on or about June 25, 2012. The Moving Parties also claim they are entitled to the sum of $21,000 in loans advanced to the Responding Parties and Systec giving rise to the Small Claims Court action.
[32] At all times, the Moving Parties submit that their conduct is consistent with the June 2012 Agreement with some agreed modifications from time to time. Further, they submit their conduct is inconsistent with the unsupported allegations asserted by the Responding Parties.
[33] The Moving Parties take the position that there were no March 2013 and no November 2013 oral Agreements as alleged by the Responding Parties. These alleged Agreements were fabricated by them. There was no joint venture between the parties. There was no non-competition agreement between them. There was no secret agreement between the Moving Parties and Shaw. The Moving Parties were free to negotiate their agreement with Shaw or any other third party. There is no evidence supporting the wild and unsupported allegations made by the Responding Parties, save for the self-serving and baseless affidavit materials filed on their behalf.
[34] The Moving Parties submit that the monies owing to them were fraudulently depleted by the Responding Parties from the bank accounts they controlled and moved to Pakistan under a shroud of lies, beyond the reach of the Moving Parties. This occurred even while the Responding Parties were on notice of an impending Mareva Injunction Application brought by the Moving Parties for fear that some depletion of assets belonging to them would in fact be moved beyond their reach. Accordingly, they seek the relief sought in the Notice of Motion paragraphs one to eight.
Position of the Responding Parties
[35] The Responding Parties assert that this is an inappropriate case for a Summary Judgment Motion where there exist at least three oral agreements where terms are disputed. A trial would be an appropriate place for the resolution of all the issues between the parties.
[36] The Responding Parties assert that the events giving rise to this action surround an oral Agreement for a Joint Venture partnership between Mobile Zone and Net Connect, two Ontario corporations, each run by the teams of spouses who had known each other for many years. The new venture was for the sale and installation of cable satellite/telecommunications products.
[37] The Responding Parties contend that in January of 2014, the Moving Parties secretly obtained a new dealership with Shaw Communications and began to migrate sales and installations to that secret venture, while draining Mobile Zone’s Bank Account of funds received from Shaw Communications.
[38] The Responding Parties assert that when Mobile Zone restricted the access of Ms. Wunderlich to that bank account, she illegally withdrew funds, commenced this action, obtained an ex-parte Mareva Injunction without disclosing the secret arrangement and other misdealings and since had taken meritless proceedings against the Responding Parties.
[39] The Responding Parties maintain that there were oral agreements reached with the Moving Parties in March of 2013 and in November of 2013, giving rise to the Counterclaim. They deny that they owe any of the loans arising out of the Small Claims Court action. They assert that the money that they withdrew from various bank accounts belonged to them and not to the Moving Parties. They seek dismissal of the Plaintiffs action, dissolution of the Injunction, damages in the amount of $182,577 (being the disgorgement of profit from the breach of the Moving Parties’ fiduciary duty plus interest and costs).
ANALYSIS
Legal Principles
Summary Judgment Rules
[40] Rule 20 and sub rules of the Rules of Civil Procedure provide the applicable rules for summary judgment as follows:
[41] Rules 20.01(3) of the Rules of Civil Procedure provide that:
(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.
[42] Rule 20.04(2) of the Rules provides that:
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[43] Rule 20.04(2.1) and (2.2) of the Rules provides that:
Powers
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the Parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
Oral Evidence (Mini-Trial)
(2.2) A judge may, for the purposes of exercising any of the powers set out in sub rule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
Hryniak Roadmap
[44] The Supreme Court of Canada set out the roadmap/approach to be taken when deciding a summary judgment motion pursuant to Rule 20.04 (see Hryniak v. Mauldin, 2014 SCC 7, 2014 S.C.C. 7 at para. 66-68.
[45] The Court is to assume the best evidence from both sides is before the court.[^1]
[46] The Responding Parties submit that there are genuine issues requiring a trial and that a Summary Judgment Motion is inappropriate. They contend that the competing versions of the dealings between the Parties raise complicated questions including those relating to credibility which could only be resolved at a trial.
[47] The Moving Parties disagree. They submit that the conduct of a trial will add no benefit to the court in determining these proceedings and will only serve to increase litigation costs and delay a just determination of these proceedings. The Moving Parties submit that the summary judgment process, 1) allows the presiding judge to make the necessary findings of fact, 2) allows the judge to apply the law to those facts, and 3) is a proportionate, more expeditious and less expensive means to achieve a just result rather than going to trial (see Hryniak at paras. 4, 28 and 49). Trial is not the default procedure (see Hryniak at para. 43).
[48] I find that this is an appropriate motion for summary judgment, as there is no genuine issue requiring a trial. A summary decision is the most fair and just result, and serves the goals of timeliness, affordability and proportionality. I find in this case and on this evidentiary record, I am in a position to render a decision in the interests of justice leading to a fair and just result and serving the goals of timeliness, affordability and proportionality in light of the litigation as a whole for reasons to follow.
The Evidence
[49] The evidentiary record in this case consists of the Moving Parties’ Motion Record in three volumes containing the affidavit of Charleen Wunderlich, sworn February 24, 2016, the affidavit of Wayne Laplante, sworn same date, together with exhibits and the affidavit of Charleen Wunderlich sworn March 22, 2016 with exhibits. Also filed were the following transcripts:
• Examination for Discovery of Charleen Wunderlich on November 11, 2015.
• Cross-Examination of Charleen Wunderlich on April 4, 2016.
• Cross-Examination of Wayne Laplante on April 4, 2016.
• Examination for Discovery of Mohammad Shahzad on November 5, 2015.
• Continued Examination for Discovery of Mohammad Shahzad on November 12, 2015.
• Continued Examination for Discovery of Mohammad Shahzad on November 27, 2015.
• Cross-Examination of Mohammad Shahzad on April 17, 2014.
• Cross-Examination of Swati Damle on April 17, 2014.
• Continued Examination for Discovery of Swati Damle on November 27, 2015.
[50] The Moving Parties also filed a compendium of evidence from the transcripts taken on the discoveries and cross-examinations of Mohammad Shahzad and Swati Damle.
[51] I was further provided with written reply submissions and compendium dated July 21, 2016 on behalf of the Moving Parties.
[52] The Moving Parties also filed a Factum and Brief of Authorities.
[53] The Responding Parties filed a Responding Record in two volumes, dated March 15, 2016, together with a Factum and Brief of Authorities.
[54] The Moving Parties’ Motion Record contained the affidavits of Ms. Wunderlich and Mr. Laplante. The exhibits referred to in those affidavits as well as the subsequent affidavit of Ms. Wunderlich sworn March 22, 2016, were meticulously prepared and provided considerable detail in support of the claims made by the Moving Parties.
[55] While the materials prepared on behalf of the Responding Parties set out versions of events that differ, the Moving Parties claimed that there was no evidence to support the position taken by the Responding Parties and the affidavits of Mr. Shahzad and Ms. Damle were self-serving, intended to advance baseless allegations without evidentiary foundation.
Findings
(i) Did Net Connect Comply with all Terms of the Agreement, thereby entitling it to the damages it seeks?
[56] The answer to this question is in the affirmative.
[57] I find that there is evidence that in or around June of 2012, Mobile Zone and Net Connect entered into an oral Agreement whereby Mobile Zone would be dedicated solely to selling satellite packages and Net Connect would install the equipment required for those satellite packages (the “Agreement”).[^2]
[58] I find the following is a non-exhaustive list of express or implied terms of the Agreement in which the Agreement was carried out by all of the parties at all times[^3]:
(a) Mobile Zone would sell Shaw satellite cable packages through telemarketing means;
(b) Mobile Zone would be exclusively entitled to the sales commissions paid by Shaw for the sales made by Mobile Zone;
(c) Net Connect would purchase all necessary satellite equipment upfront and would be reimbursed for those purchases by funds provided by Shaw which were specifically earmarked as equipment cost reimbursement payments;
(d) Net Connect would oversee all installation of the satellite equipment for sales made by Mobile Zone;
(e) Net Connect would be exclusively entitled to the installation fees paid by Shaw;
(f) A contract would be entered into between Shaw and Mobile Zone;
(g) Net Connect was not bound to operate only in the Shaw Agreement, to deal only with call centres connected to Mobile Zone or to abstain from seeking its own contract with Shaw;
(h) Funds owing from Shaw for the sale and installation of the satellite cable packages would be paid into a bank account registered to Mobile Zone; and
(i) Immediately after funds owing and payable to Net Connect were received from Shaw by Mobile Zone, those specific funds would be immediately paid out to or withdrawn by Net Connect.
[59] At all times, the parties acted in accordance with these terms of the Agreement as evidenced by the manner in which they carried on business from June through to January/February 2014.
[60] The Agreement had no finite term and did not document a Joint Venture as between the parties. I find the Moving Parties and the Responding Parties conducted their business within their own spheres of operation and control. Net Connect had no knowledge or control of Mobile Zone’s sales processes; Mobile Zone had no knowledge or control of the Net Connect installation or sales processes. I find the revenues, assets and expenses were not shared between Net Connect and Mobile Zone.[^4]
[61] On or about June 25, 2012, Mobile Zone and Shaw formalized a contract (The “Shaw Agreement”). [^5]
[62] In July, 2013, the project proceeded in accordance with the Agreement. Mobile Zone began making sales under the Shaw Agreement after July 2013. Shaw paid the equipment costs, reimbursement and installation fee separately from fees from sales. The receipt of funds by Mobile Zone from Shaw, those specific funds were immediately paid out to the respective corporations in accordance with the terms of the Agreement.[^6] The Parties had agreed to conduct business with Shaw as they did because Mr. Laplante once worked for Bell Canada and was bound by a non-competition agreement regarding sales.
[63] In June of 2012 to December 2013, the evidence discloses that Mobile Zone had complete control of the Mobile Zone Bank Account.
[64] Net Connect purchased equipment sporadically. Reimbursement requests would be made to Shaw following the installation of the equipment and would be paid within three to four weeks of the reimbursement request being submitted to Shaw[^7].
[65] In or around October 2013, Net Connect began making its own sales by means of door to door soliciting and the Agreement was extended to include a $5.00 commission per sale payable to Mobile Zone for all sales made by Net Connect.[^8]
[66] In December 2013, Ms. Wunderlich was given signing authority on the Mobile Zone Bank Account so that funds owing to Net Connect could immediately be paid to Net Connect upon receipt of those specific funds from Shaw.[^9]
[67] Pursuant to the formal Agreement between Mobile Zone and Shaw (The “Shaw Agreement”) all funds paid by Shaw flowed through the Mobile Zone Bank Account to reimburse Net Connect. The Agreement was extended to include the $5.00 commission to Mobile Zone for the Net Connect door to door sales.
[68] Pursuant to the Agreement, following receipt of equipment reimbursement funds from Shaw into the Mobile Zone Bank Account, 100 percent of those funds were immediately transferred to Net Connect.
July 2013
$1,144.60
November 2013
$51,665.76
August 2013
$4014.49
December 2013
$97,961.78
September 2013
$10,027.44
January 2014
$57,114.10
October 2013
$28,637.26
February 2014
$29,595.52
[69] I accept that these figures and further amounts are supported in evidence by the meticulous records kept by Ms. Wunderlich. Those records coincide with the record keeping of Shaw. All of these records were at all times available to the Responding Parties and no monies were withdrawn from the Mobile Zone account by Net Connect without Mobile Zone having full documentary backup supporting the Net Connect withdrawals. This is the manner in which the parties conducted their business up until February 2014.
[70] I find that from the date of the Agreement until February, 2014, Mobile Zone earned the following sales commissions:
July 2013
$84.75
October 2013
$819.25
August 2013
$700.60
November 2013
$2553.80
September 2013
$1824.95
December 2013
$8887.45
[71] No payment reports from Shaw were delivered to Net Connect by Mobile Zone following February, 2014, so the amounts earned by Mobile Zone in January and February of 2014 are beyond the knowledge of the Moving Parties.[^10]
[72] I find from the date of the Agreement to February 2014, Net Connect earned and received funds of which included equipment reimbursements:
September 2013
$2350.39
December 2013
$87,674.38
October 2013
$12,463.87
January 2014
$152,693.21
November 2013
$34,825.52
February 2014
$65,764.70[^11]
[73] I accept the evidence of the Moving Parties that prior to withdrawal of any funds by Ms. Wunderlich from the Mobile Zone Bank Account, Shaw’s payment summary and a Net Connect invoice were provided to Mr. Shahzad and Ms. Damle outlining the exact amount of money to be withdrawn. Accordingly, I find that the evidence supports that at all times, the Responding Parties had a complete understanding of the amount of funds being paid by Shaw, how Shaw calculated the payment sum, how much would be withdrawn from the Mobile Zone Bank Account and how those sums were calculated by Net Connect. The Responding Parties never once questioned Ms. Wunderlich’s accounting[^12] as supported by this evidentiary record.
[74] A sample transaction can be found of Shaw documentation for payment of installation and equipment reimbursement in the amount of $6384.47 for period September 2013 to October 2013.[^13]
[75] Shaw had paid this amount to Mobile Zone and Mobile Zone had reimbursed the same amount to Net Connect. The amount of $6384.47 is also reflected in an invoice created by Net Connect for the same amount.
[76] Another example in relation to sales commissions can also be found in the Moving Parties’ Motion Record whereby documentation would be prepared by Net Connect reflecting the $5.00 commission earned by Mobile Zone and payable by Net Connect. This documentation was also given to Mobile Zone before funds were paid or withdrawn by Net Connect from the Mobile Zone Bank Account.
[77] In find the evidence overwhelmingly supports that this method of transaction between the Moving Parties and Responding Parties continued throughout the terms of the Agreement. This manner of dealing is entirely consistent with the terms of the Agreement alleged by the Moving Parties and is inconsistent with any other method of the parties dealing with each other as alleged by the Responding Parties. I find the evidence of the Moving Parties to be unchallenged and uncontroverted in respect of the manner in which the parties carried on business pursuant to the original June 12 Agreement which included the payment of the $5.00 permission per sale payable to Mobile Zone for all sales made by Net Connect door to door.
[78] I find that in or around October of 2013, Shaw introduced sales bonuses to the Shaw Contract. Twenty percent of the sales bonuses for Net Connect sales were originally given to Mobile Zone by Net Connect. However, this was scaled back by Agreement in November 2013, following in which Net Connect kept 100 percent of the sales bonuses for its sales and Mobile Zone received 100 percent of the sales bonus for its sales.[^14] This agreement is also confirmed by an email by Ms. Wunderlich to Mr. Laplante, a copy of which was provided to the responding parties. This email summarizes a discussion which Ms. Wunderlich had with the Responding Parties as to their financial agreement.[^15]
[79] I find that in or around November 2013, Net Connect obtained its own Shaw Contract as it was entitled to do. The original intention was to perform designate work and commercial contracts for Shaw. However, the contract was not limited in what work could be done under the contract. Net Connect began making residential sales under this contract after Mobile Zone was ordered by Shaw to ease all telemarketing sales, its only source of sales, on January 23, 2014.[^16]
[80] I find that in January of 2013, Ms. Damle transferred ownership of a property solely owned by her to a corporation under the control of her and Mr. Shahzad and removed herself as a director and officer of Mobile Zone.[^17] I will return to the events of January and February 2014, when considering the removal of monies from the Mobile Zone Bank Account by the Responding Parties in February of 2014.
[81] I find the evidentiary record is confirmatory of the terms of the original Agreement alleged by the Moving Parties. From June 2012 to January/February 2014, the Moving Parties and the Responding Parties adopted the same modus operandi throughout. In December of 2013, Ms. Wunderlich by agreement with the Responding Parties received signing authority to withdraw funds directly from the Mobile Zone Bank Account. Nevertheless, the Moving Parties continued to provide the Responding Parties with the same documentation supporting withdrawal of funds from that account as it had from the very beginning. The evidence discloses that there was no deviation from this payment method or the manner of doing business. I find that the Moving Parties did not breach the original Agreement. To the contrary, I find that the Responding Parties did breach the original Agreement and improperly removed funds from the Mobile Zone and Systec Bank Accounts in Ontario, transferring such funds to Pakistan, beyond the reach of the Moving Parties.
(ii) Is the Business Arrangement Between Net Connect and Mobile Zone a Joint Venture as alleged by the Responding Parties?
[82] The Responding Parties allege that beginning in 2012, Net Connect and Mobile Zone became engaged in a joint venture for the sale and installation for Shaw satellite services in Ontario, pursuant to a Dealership Agreement between Mobile Zone and Shaw. The Dealership Agreement was in writing and was between Mobile Zone and Shaw. Net Connect was not a party as Mr. Laplante was subject to a non-competition agreement with Bell. The Moving Parties vigorously deny that the business arrangements between Mobile Zone and Net Connect were in the nature of a Joint Venture.
[83] For the following reasons, I find this arrangement between Net Connect and Mobile Zone is not in the nature of a Joint Venture. The following must usually be present to establish a relationship of Joint Venture:
(a) A contribution by the parties of money, property, effort, knowledge, skill or other asset to a common undertaking;
(b) A joint property interest in the subject matter of the venture;
(c) A right of mutual control or management of the enterprise;
(d) Expectation of profit, or the presence of ‘adventure,’ as it is sometimes called’;
(e) A right to participate in the profits;
(f) Most usually, limitation of the objective to a single undertaking or ad hoc enterprise.[^18]
[84] I find that none of the business arrangements were a Joint Venture summarized in the Moving Parties Factum, at paragraph 82 as follows:
(i) No funds were contributed by any party to a common undertaking;
(ii) There was no common undertaking and there was no right of mutual control or management;
(iii) Net Connect and Mobile Zone operated as two separate entities at all material times without any knowledge or interference from each with respect to their own business operations. In fact, the Responding Parties admit that they did not ever advise Mr. Laplante or Ms. Wunderlich that the alleged losses they alleged incurred were incurred as a result of a contract with a corporation under Mr. Shahzad’s sole own control. As Mr. Shahzad states, “that was none of the ICT North’s business”.[^19]
(iv) There was no expectation of profit by Mobile Zone as a result of efforts made by Net Connect and, according to Mr. Shahzad, pursuant to the alleged March 2013 Agreement, the Moving Parties were not entitled to participate in the profits of Systec had Systec been profitable instead of allegedly losing $144,000 in approximately eight months;[^20]
(v) There was no single undertaking or ad hoc enterprise.
[85] I find on this evidentiary record at no time was the relationship between any of the Moving Parties and any of the Responding Parties a Joint Venture as alleged.
(iii) Did the Agreement Contain any Restrictive Terms Such as a Non-Competition Clause with Other Sales Business and/or Shaw?
[86] Mobile Zone submits that in January of 2014, its principals discovered that Net Connect had secretly sought and obtained its own dealership from Shaw. When confronted with this, Mr. Laplante allegedly apologized and asserted that the contract was simply for overflow installations. Net Connect would subsequently plead that its contract was only for commercial installations. Mobile Zone alleges that neither of these assertions are true and that both Mr. Laplante and Ms. Wunderlich continue to mislead the Responding Parties about obtaining Net Connects own Shaw Dealership.
[87] The Moving Parties vehemently deny ever being bound to not compete with Mobile Zone by obtaining its own contract with Shaw or that Net Connect could not contract with other telemarketing businesses.
[88] I find that neither the June 2012 original agreement between the Moving Parties and Responding Parties nor any other agreement contains a non-competition clause whereby the Moving Parties were prohibited from obtaining its own contract with Shaw or any other telemarketing business. I find that no evidence has been presented by the Responding Parties regarding the alleged non-competition clause or breach thereof. Furthermore, the evidence is overwhelming that the Parties did not act in the manner alleged by the Responding Parties.
[89] The Responding Parties allege that in early 2014, Net Connect, Ms. Wunderlich and Mr. Laplante began steadily migrating sales away from the Shaw Agreement, misappropriated sales commissions to Net Connect directly from sales made by Mobile Zone, and withdrew money from the Mobile Zone Bank Account that belonged to Mobile Zone. It is further alleged that this was an anticipation of the expiry of a non-competition agreement with Bell which Mr. Laplante had signed and which was set to expire on February 15, 2014.
[90] I find on this evidentiary record, the evidence simply does not support the theory of secret contract and migrating sales asserted by the Responding Parties. To the contrary, what the evidentiary record does show in meticulous detail, is “business as usual” between the parties in accordance with their original oral June 2012 Agreement.
[91] Further, despite being entitled to do so, I find that Net Connect only made sales under its own Shaw Contract, after Shaw terminated Mobile Zone’s ability to make sales using telemarketing processes. Net Connect obtained its own Shaw Contract in November of 2013. That Contract was not limited in what work could be done under it. Net Connect began making residential sales under this contract after Mobile Zone was ordered by Shaw to cease all telemarketing sales, its only source of sales, on January 23, 2014.
[92] In any event, I find that the original oral 2012 Agreement between the Moving Parties and Responding Parties did not contain any restrictive terms, such as a non-competition clause with other sales business and/or Shaw. Neither did any such restrictive terms or non-competition clause exist regarding the alleged March 2013 and November 2013 oral Agreements. At all times, the parties acted in accordance with these terms of Agreement as evidenced by the manner in which they carried on business from June through to January/February 2014.
(iv) Did Net Connect Induce a Breach of Contract Between Mobile Zone and Shaw?
[93] I find there is no evidence which supports the allegations that the Moving Parties induced a breach of the Shaw Contract dated June 25, 2012, as between Shaw and Mobile Zone. There is no evidence which supports the allegations that the Moving Parties induced any such breach of Contract. Further, Shaw is not a party to these proceedings. Apart from the unsubstantiated allegations of the Responding Parties, there is no evidence to support any allegations that the Moving Parties induced a breach of Contract between the Responding Parties and Shaw.
(v) Was the alleged March 2013 Agreement reached?
[94] The Responding Parties allege that generally there was an Agreement with the Moving Parties in March of 2013 whereby Net Connect agreed to pay Systec to increase its sales force and Net Connect and Mobile Zone agreed to share in Systec’s future losses.
[95] The Moving Parties deny that any such agreement ever took place and that the evidence is to the contrary.
[96] The Responding Parties, through the Statement of Defence and Counterclaim, affidavits and/or during examinations, have alleged the following with respect to the alleged March 2013 Agreement:
(i) In March, 2013, a meeting allegedly took place between the within parties, at which time Net Connect agreed to pay Systec to increase its sales force, and Net Connect and Mobile Zone agreed to share in Systec’s future losses.[^21]
(ii) The Responding Parties have since alleged it was ICT North which agreed to share in Systec’s operating losses moving forward.[^22] The pleadings have not been amended despite this error being identified in April 2014;
(iii) Mr. Shahzad and Ms. Damle presented no evidence of any losses to the Moving Parties during the alleged March 2013 meeting[^23] and the Moving Parties never requested any evidence of Systec’s losses yet ICT North agreed to indemnify Systec for half of all of its future operating losses[^24];
(iv) It was allegedly Mr. Laplante’s idea to pay half of Systec’s losses moving forward despite not knowing what those losses would be and having been presented no evidence of any losses whatsoever to that point[^25];
(v) Mr. Shahzad advised the Moving Parties of the quantum of Systec’s losses to that date at the alleged March 2013 meeting, though he could not recall the actual quantum of losses he communicated to the Moving Parties when asked to do so during examination for discovery[^26];
(vi) Net Connect and Mobile Zone were operating entirely independently with no involvement in the other corporation’s respective business or day to day operations meaning the Moving Parties had no knowledge or control whatsoever over Mobile Zone sales processes[^27];
(vii) Systec and ICT were operating entirely independently with no involvement in the others corporation’s respective business or day to day operations[^28], the Moving Parties had nothing to do with any sales made by any Responding Parties and, accordingly, no disclosure was required by Mr. Shahzad or Ms. Damle, according to them, to the Moving Parties with respect to who Systec was contracting with to do sales[^29];
(viii) There exists no written correspondence of any kind regarding the losses allegedly owed by ICT North despite the fact that Mr. Shahzad had confirmed that he knew Systec’s alleged losses following March 2013 with complete precision at any given time for the months previous[^30];
(ix) In emails exchanged between the Parties from March to November 2013, Mr. Shahzad failed to reference the alleged March 2013 Agreement in response to Mr. Laplante’s comments that the Responding Parties’ losses were their own but instead makes mention of making a “tiny profit”[^31]. Mr. Shahzad has failed to provide a reasonable explanation as to why the content of this email exchange entirely contradicts the existence of the alleged March 2013 Agreement[^32];
(x) Mr. Shahzad cannot remember when the payments by ICT North to Systec for Systec’s losses were supposed to commence following March 2013[^33];
(xi) The Defendants are seeking damages for losses incurred in March and April 2013 even though, according to Mr. Shahzad, Systec did not allegedly increase its sales force with Telus until May 2013[^34]. Mr. Shahzad could provide no explanation at examinations for discovery for this anomaly[^35];
(xii) The Defendants continued to operate pursuant to the Agreement despite allegedly suffering tremendous losses as a result of the Moving Parties’ refusal to comply with the alleged March 2013 Agreement; and
(xiii) Shahzad specifically turned his mind to evidencing the alleged March 2013 Agreement in writing but did not do so because he allegedly felt it was unnecessary to do so[^36].
[97] The existence of the alleged March 2013 Agreement is vehemently denied by the Moving Parties, and its existence is entirely contradicted by the evidence. I accept the assertions of the Moving Parties as set out in the preceding paragraph which is supported by the evidence.
[98] I find that after March 3013, there are no emails or documents that give any support or credence in respect of the existence of the alleged March 2013 Agreement.
[99] To the contrary, the conduct of the parties evidence their dealings contemporaneous and consistent with the original oral Agreement of June 2012 on a go forward basis. Not only do the Moving Parties deny that any of these discussions with the Responding Parties ever took place in March of 2013 but I find the course of conduct between the parties between March 2013 and November 2013, to be consistent with “business as usual” in accordance with the original oral Agreement of June 2012 between the parties.
[100] Mr. Shahzad alleges that he made payment demands every two weeks for payment of half the costs of Systec from the period March 2013 to November 2013. These demands were made orally and not in writing.
[101] The Moving Parties deny that any said demands were ever made. The Moving Parties had no knowledge of what those costs or alleged losses were. Any such knowledge would have been in the possession of the Responding Parties and certainly not communicated to the Moving Parties.
[102] There is no deviation in respect of the method by which Net Connect was paid pursuant to the original oral Agreement of June 2012 until the funds were dissipated by the Responding Parties after December 2013. There was no documentary evidence to support operating costs of Systec in the amount of $282,000 for seven months. There was no evidence to support that Systec’s alleged one half losses amount to $144,000. Systec is not a party to these proceedings.
[103] What the evidentiary record does show is that emails exchanged during this seven month period (from March 2013 to November 2013) do not disclose any evidence of Mr. Shahzad demanding payment as alleged or disclosure of any losses whatsoever or if any losses were suffered, was there any expectation by Net Connect or ICT North to pay one half of the losses as alleged per the March 2013 Agreement on a go-forward basis.
[104] There have been many opportunities for the Responding Parties to point to evidence supporting demands for payment of losses as alleged every two weeks. I find there are no references to any losses or payment of any losses by the Moving Parties to the Responding Parties in respect of Systec’s operating losses. There is evidence that loans advanced by the Moving Parties to the Responding Parties could not be clawed back or would be held in abeyance. There is nothing to support the alleged demands by Mr. Shahzad to pay operating losses.
[105] To the contrary, there is an exchange of emails between Mr. Shahzad and Mr. Laplante in September, 2013, which offers evidence contrary to any Agreement sharing one half of Systec’s losses. In particular, Mr. Laplante essentially told Mr. Shahzad that his losses were his losses. If this was a problem for Mr. Shahzad, then Mr. Laplante invited Mr. Shahzad to respond[^37]. This email makes no mention of Systec or payment of one half of the Systec’s operating losses. At this point in time, it would have been open for Mr. Shahzad to respond by telling Mr. Laplante that the Moving Parties were in breach of the March 2013 Agreement, they were not paying their fair share and that they owed one half of the operating losses of Systec which were not paid. This email is silent in respect of any such demand for payments and any such reference to any alleged March 2013 Agreement.
[106] At the same time, and since the beginning of the oral June 2012 Agreement, and in particular during the months of October and September 2013, the Parties continued to share all of the documentation required which supported either the payment or withdrawal of funds to Net Connect by Mobile Zone for payment owing to Net Connect.
[107] I find that there was no March 2013 Agreement between the parties. Rather, this Agreement was fabricated by the Responding Parties with a view to avoiding payment to the Moving Parties, justifying their unlawful conduct, and providing some specious foundation for meritless claims advanced by the Responding Parties. Further, I find that the Moving Parties did not breach an Agreement that simply did not exist.
[108] There was no evidence presented to support the existence of this alleged Agreement. The parties never conducted themselves in this manner and the available evidence contradicts the existence of this alleged Agreement, the terms of which make no sense and are unbelievable.
(vi) Was the Alleged November 2013 Agreement Reached?
[109] Similarly, I find that no evidence has been presented to support the existence of this Agreement. The Parties never conducted themselves in this manner. The available evidence contradicts the existence of this alleged Agreement and the terms of the alleged Agreement are again, unreasonable and unbelievable. As with the alleged March 2013 Agreement, I find that this Agreement is also a fabrication.
[110] The Responding Parties allege, by their pleadings, affidavits and/or during examination, the following regarding the alleged November 2013 Agreement:
(a) ICT North, Net Connect, and Laplante and Wunderlich personally, agreed to pay $72,000 to Mobile Zone for Systec’s losses by purchasing satellite equipment by credit card and would then not seek reimbursement[^38]. I find the parties never acted in this way and no evidence exists that this alleged agreement term was made or communicated;
(b) Following November 2013, Mobile Zone would receive 80 percent of the hardware margin moving forward[^39]. I find the parties never acted in this way[^40] and no evidence exists that his alleged Agreement term was made or communicated;
(c) Following November 2013, Mobile Zone would receive 20 percent of the installation margin[^41]. I find the parties never acted in this way[^42] and no evidence exists which supports the existence of this alleged Agreement;
(d) Following November 2013, Mobile Zone would contract for a 35 person telemarketing sales team in Pakistan[^43]. No evidence exists that this alleged Agreement term was made or communicated;
(e) Net Connect, ICT North and Mr. Laplante personally would pay $12,000 per month for December 2013, and January, February, and March of 2014[^44]. I find the parties never acted in this way and no evidence exists that this alleged Agreement term was made or communicated;
(f) Mobile Zone would continue to receive $5.00 for every sales made by Net Connect[^45]; and
(g) An accounting would be undertaken for the previous months of the Agreement[^46]. I find the parties never acted in this way and no evidence exists that this alleged agreement term was made or communicated.
[111] The Responding Parties further allege that payments of $5000 in December 2013, $6000 in early January 2014 and $3500 in late January 2014 from Net Connect are evidence of the alleged November 2013 Agreement[^47] despite each cheque/bank draft being identified as a loan/advance[^48] and despite Mr. Shahzad admitting that he had previously accepted similar loans form the Moving Parties in the past[^49].
[112] The existence of the alleged November 2013 Agreement is vehemently denied by the Moving Parties, the Parties never once acted in accordance with this alleged contract and there exists no written communication which remotely speaks to it This allegation was further never communicated to the Defendants by Counterclaim at any time prior to delivery of the Counterclaim[^50].
[113] What becomes even more unbelievable is that Mr. Laplante and Ms. Wunderlich not only agreed that the Moving Parties would be liable to pay half of Systec’s losses but, according to Mr. Shahzad, Mr. Laplante and Ms. Wunderlich agreed to become personally liable to pay such losses in accordance with the alleged March 2013 Agreement. There is no documentation to support the alleged personal liability of Mr. Laplante and Ms. Wunderlich to personally pay Mobile Zone for one half of the Systec losses. In November of 2013, the evidentiary record shows that Mobile Zone paid out monies to the Moving Parties in accordance with the terms of the original oral 2012 Agreement until February of 2014.
[114] In respect of allegations that Net Connect, ICT North and Laplante would personally pay $12,000 per month from December 2013 and January, February and March, 2014, this had nothing to do with Systec’s losses. Rather, this related to loans between ICT and Mobile Zone.
[115] Once again, the tone of dealings between the Parties is “business as usual”. There is no documentation to support either the creation of the alleged November 2013 Agreement or a breach of the March 2013 Agreement.
[116] I find there was no demand for payment every two weeks as alleged by Mr. Shahzad. I further find the alleged November 2013 Agreement did not exist. Rather, what did happen was Net Connect continued to be paid through the Fall months of 2013 and one step further, Net Connect was given direct access to the Mobile Zone Bank Account. Such an action would have been entirely inconsistent with the two alleged Agreements. If the Responding Parties felt that they were aggrieved, it would make absolutely no sense for them to give Ms. Wunderlich access to the Mobile Zone Bank Account in face of all of the alleged breaches. After Ms. Wunderlich was given access to the Mobile Zone Bank Account, the parties continued to proceed and deal with each other in the same way as if there had been no change in their business arrangement. The same process for payment was adopted without change. I find it makes no sense whatsoever that Ms. Wunderlich and Mr. Laplante agreed to be personally liable for unsubstantiated losses for a company they did not control. I find no party ever conducted themselves in that way and there was no evidence to support any such Agreement.
[117] I find that the alleged November 2013 Agreement did not exist. Again, it is a fabrication to deny payment to the Moving Parties, to justify the unlawful actions of the Responding Parties and found specious and meritless claims.
Removal of Funds From the Mobile Zone Bank Account by the Responding Parties
[118] The Responding Parties have alleged that in early 2014, the Moving Parties began steadily migrating sales away from the Shaw Agreement, misappropriated sales commissions to Net Connect directly from sales made by Mobile Zone and withdrew money from Mobile Zone’s Bank Account that belonged to Mobile Zone. They did this in anticipation of the expiry of the non-competition agreement with Bell which Mr. Laplante had signed and which was set to expire on February 15, 2014. I have found that Net Connect was entitled to enter into its own contract with Shaw. I have also found on this evidentiary record that there was no support for the allegation made by the Responding Parties that the Moving Parties orchestrated a steady migration of sales away from the Shaw Agreement and misappropriated sales commissions to Net Connect directly from sales made by Mobile Zone. The evidentiary record does not support these allegations, neither does the evidentiary record support that the Moving Parties withdrew money from Mobile Zone’s Bank Account that belonged to Mobile Zone. To the contrary, I find the documentation establishes that the Responding Parties withdrew monies from the Mobile Zone account belonging to the Moving Parties without the knowledge and agreement of the Moving Parties. Further, those funds belonging to the Moving Parties were transferred out of the jurisdiction by the Responding Parties to Pakistan under a shroud of lies so that those funds would be out of the reach of the Moving Parties.
[119] The following is an chronology supported by the evidence which I accept in respect of the removal of monies by the Responding Parties from the Mobile Zone Bank Account owing to the Moving Parties:
On or around February 13, 2013, Mr. Shahzad advised the Moving Parties that Ms. Wunderlich’s access to the Mobile Zone Bank Account would be suspended until February 17, 2014, to facilitate a commercial mortgage[^51]. This was a decision made jointly by Mr. Shahzad and Ms. Damle.
Mr. Shahzad now admits that he lied and that there was no mortgage and alleges that the real reason for ending bank access was to facilitate an “investigation” by him[^52]. This alleged investigation produced no written documents[^53]and was never communicated to the Moving Parties prior to proceedings commencing. [^54]
On February 14, 2014, Ms. Wunderlich still had access to the Mobile Zone Bank Account and, as she was entitled to, she removed $16,678.80 owing to Net Connect from a total Shaw deposit of $25,566.25. Prior to the withdrawal, Mr. Shahzad and Ms. Damle were provided with a Net Connect invoice and Shaw documentation which explained and justified the withdrawal.[^55]
On February 15, 2014, Mr. Shahzad, Mr. Shahzad’s mother, and Ms. Damle attended the wedding of Ms. Wunderlich and Mr. Laplante and gave cash gifts of $200 to each of them. At no time during the wedding did Mr. Shahzad or Ms. Damle make any mention of an “investigation” nor did they behave in any untoward way.[^56]
On February 19, 2014, Shaw deposited $9571.10 into the Mobile Zone Bank Account of which Net Connect was entitled to $1717.60 for hardware reimbursement and $5193.76 for the December Net Connect sales bonus.[^57]
On or around February 24, 2014 an equipment reimbursement payment in the amount of $70,086.26 was received by Mobile Zone which is 100 percent owing and payable to Net Connect.[^58]
Mr. Shahzad and Ms. Damle advised the Moving Parties that they would be out of the country until March 3, 2014. They did not return until March 9, 2014 and did not advise the Moving Parties that their vacation would be extended.[^59]
From February 22 to March 3, 2014, while Mr. Shahzad and Ms. Damle were out of the country, emails were exchanged between Mr. Laplante and Mr. Shahzad regarding the monies owing to Net Connect in which Mr. Shahzad made assurances that access to the Mobile Zone Bank Account would be reinstated. This was to happen at a meeting at Mobile Zone’s CIBC Branch on March 3, 2014. Mr. Shahzad failed to attend the March 3, 2014 meeting without any notice to the Moving Parties.[^60]
On March 4, 2014, during a meeting with John Daigle of Shaw, Mr. Laplante and Ms. Wunderlich were advised by Mr. Daigle that at that exact moment he had received an email from Mr. Shahzad advising Shaw to cease all communication with the Moving Parties with respect to the Mobile Zone and Shaw Agreement.[^61]
On March 5 and 6, 2014, Plaintiff’s counsel sent correspondence by email to Ms. Damle and Mr. Shahzad demanding the funds owed to Net Connect and advising that a motion would be brought on March 11, 2014, to effectively seize their assets.[^62]
On March 7, 2014, a further payment was received by Mobile Zone from Shaw in the amount of $32,339.74, all of which remains owing to Net Connect.[^63]
Emergency Injunction – The Mareva Injunction
[120] An emergency motion for a Mareva injunction and to obtain funds held by Shaw was heard on an ex-parte basis on March 11, 2014, before the Honourable Justice S. Healey who granted the interim relief sought against Mr. Shahzad, Ms. Damle and Mobile Zone Inc.[^64]
[121] Justice Healey’s Order was continued by various Orders of the Court until it was continued on consent by my Order dated June 25, 2014, pending further Order of the Court, reducing the security amount from $150,000 to the sum of $100,000.
[122] Pursuant to the Order of Justice Healey, Shaw paid to HGR Graham Partners LLP funds payable to Mobile Zone to hold in trust. To date, the amount held is approximately $64,101.49, including accrued interest.[^65]
Depletion of Mobile Zone and Systec Bank Accounts
[123] I find from February 15, 2014, Mr. Shahzad and Ms. Damle removed $119,784.50 from the Mobile Zone Bank Account including $33,177 on March 10, 2014, with full knowledge that a motion for injunction was being brought against them the next day. Also, I find on March 10, 2014, Mr. Shahzad removed $60,000 from the Systec Bank Account and wired at least $40,000 to Pakistan.[^66]
[124] I find the evidence is clear that the Responding Parties lied to the Moving Parties. They generated a series of falsehoods to buy them time so that they could empty out not only the Mobile Zone Bank Account but also the Systec Bank Account. The Responding Parties lied to the Moving Parties even while they were depleting the Mobile Zone Bank Account and while they were transferring monies to Pakistan. There is no evidence as to why the Responding Parties lied to the Moving Parties. There is no explanation why they took all the money to Pakistan. They did so in the face of communications from Mr. Laplante, advising that he needed to be paid, and that delay by Mr. Shahzad in making payment was unacceptable.
[125] The only explanation that comes from Mr. Shahzad was that he appropriated the money and sent it to Pakistan because it was “his money” and he could do with it whatever he pleased. Again, this is but another falsehood. Those funds on the strength of consistent and meticulous record keeping on the part of the Moving Parties clearly show that those monies belonged to the Moving Parties and not the Responding Parties.
Continued Dissipation of Assets by the Responding Parties
[126] I find from December 9, 2015, the Defendants were aware that a Summary Judgment Motion was scheduled to be heard in March 2016.[^67] Despite this, Ms. Damle has continued to dissipate her assets by selling a property owned by her located in Brampton, Ontario, for $421,000 on December 21, 2015[^68], registering a private mortgage on another property[^69], and listing an additional property for sale[^70]. This sale was prevented by Order of the Court.
(vii) Should Barrie Small Claims Court File #1598-14 be Transferred to the Within Proceedings and Judgment Entered Against the Responding Parties for the Loans Made May and June 2012 and January 2013?
[127] The answer to this question is in the affirmative.
[128] On May 31, 2012, June 8, 2012 and January 4, 2013 Loans of $2500, $2500 and $2000 were advanced from the Moving Parties to the Responding Parties, at the specific request of Mr. Shahzad.[^71]
[129] The above loans were advanced on a no-interest basis for a term of one (1) year following which they would be repaid on a bi-weekly basis of $500 until the loans were repaid[^72].
[130] In May 2013, the first payments were applied. However, on the specific request of Mr. Shahzad, the loans were extended.[^73] The full amount of the loans remains outstanding.
[131] Mr. Shahzad now denies that the loans are repayable[^74] despite acknowledging them as repayable when accepting the funds and in writing in a January 2013 email[^75].
[132] On or around November 28, 2013, December 13, 2013, and January 20, 2014, loans of $5,000, $6000, and $3500 were extended from the Moving Parties to the Responding Parties. These loans have not been repaid.
[133] A claim was commenced in the Barrie Small Claims Court under File No. 1598-14 by Net Connect, ICT North, Ms. Wunderlich and Mr. Laplante as Plaintiffs against Mr. Shahzad, Ms. Damle, Mobile Zone Inc., and Systec Communications Inc., incorrectly identified as Systec Inc. in the pleading, as a result of a failure to repay loans made in 2012, 2013 and 2014.[^76] The amount claimed by the Plaintiffs in the Barrie Small Claims Court action against the Defendants is the sum of $21,000.
[134] The Order of Justice Ferguson, dated October 20, 2015, requiring the Responding Parties to have the Small Claims Court proceeding transferred to the Superior Court and consolidated with the within proceedings. The Order was to further clarify on consent the correct identity of Systec Communications Inc. The Responding Parties are in breach of Justice Ferguson’s Order without a valid reason.
[135] I find that evidence in support of the loans from the Moving Parties to the Responding Parties including Systec can be found at Tabs 41, 42, 43, 44, 45, 46 and 47 contained in the Moving Parties Motion Record at Volume Two. I find that this evidence supports the loans claimed by the Moving Parties as alleged totalling the sum of $21,500. The evidence is that the sum of $500 was clawed back by the Moving Parties leaving an outstanding balance of $21,000. The Parties agreed that the claw-back practice would not continue, leaving an outstanding balance of $21,000 that remains unpaid.
[136] I rely upon the Order of Justice Ferguson dated October 20, 105, wherein she ordered the Responding Parties to transfer the Small Claims Court proceeding to the Superior Court of Justice and to join the Small Claims Court proceeding with the Superior Court of Justice Proceedings. That Order on consent further corrected the identity of Systec Communications Inc. I confirm Justice Ferguson’s Order transferring the Barrie Small Claims Court proceeding, file number 1598/14 be transferred to the Superior Court of Justice and consolidated for hearing with these proceedings. Further, I confirm on consent that the correct identity of Systec is Systec Communications Inc.
[137] I am satisfied on all the evidence that the Responding Parties including Systec Communications Inc. owe the Moving Parties the sum of $21,000 plus prejudgment interest. There will be judgment in the amount of $21,000 against the Responding Parties, including Systec Communications Inc. jointly and severally in favour of the Moving Parties. There is no evidence tendered on behalf of the Responding Parties addressing the loans issue.
[138] I find this Court has sufficient evidence and jurisdiction to transfer and join the Small Claims Court action to these proceedings and award judgment in favour of the Moving Parties. (see Rule 5.01 and 6.01 of the Rules of Civil Procedure).
Statement of Defence and Counterclaim Allegations
[139] A claim was commenced against the Responding Parties on March 10, 2014.[^77]
[140] The Responding Parties served a Statement of Defence and Counterclaim dated July 25, 2014, in which the Responding Parties deny owing the damages sought by Net Connect and Counterclaim for damages in the of $331,297.19 on behalf of Mobile Zone, Mr. Shahzad and Ms. Damle personally against Net Connect and the added Defendants, Mr. Laplante, Ms. Wunderlich and ICT North.[^78]
[141] I find the Statement of Defence and Counterclaim are based on the following unsupported and fabricated allegations:
(i) Net Connect and Mobile Zone are engaged in a Joint Venture[^79];
(ii) Pursuant to an implied/express oral Agreement, Net Connect was prohibited from contracting with third party telemarketing sales companies[^80];
(iii) Pursuant to the Agreement, or some other implied/express oral Agreement, Net Connect was prohibited from obtaining its own contract with Shaw[^81];
(iv) In March 2013, Mobile Zone and Net Connect orally agreed to share in the operating losses of Systec moving forward (the “alleged March 2013 Agreement”)[^82];
(v) In November 2013, an Agreement was orally made as a result of a breach of the alleged March Agreement by the Moving Parties (the “alleged November 2013 Agreement”)[^83]; and
(vi) The Moving Parties induced a breach of the Shaw Contract by Shaw[^84].
[142] I have found that the Statement of Defence and Counterclaim are based on unsupported and fabricated allegations. I have found that Net Connect and Mobile Zone were not engaged in a Joint Venture pursuant to an implied/express oral Agreement, Net Connect was not prohibited from contracting with third party telemarketing sales companies. Neither was Net Connect prohibited pursuant to the Agreement or any other implied/express oral Agreement, from obtaining its own contract with Shaw.
[143] I have found that the March 2013 and November 2013 Agreements did not exist and there was no agreement specifically to share in the operating losses of Systec moving forward, nor was there any breach of these two alleged Agreements. Finally, I found that the Moving Parties did not induce a breach of the Shaw Contract by Shaw who is not a party to these proceedings.
[144] I find that the Responding Parties have failed to prove any of the damages sought by way of Counterclaim. There is no evidence to support the alleged claims except for bald and wild allegations found in the affidavits of the Responding Parties and their examinations. Accordingly, I dismiss the Counterclaim in full with costs awarded to the Moving Parties.
Net Connect’s Claims for Damages
[145] Pursuant to the Agreement, Net Connect claims that it is owed the sum of $155,836.32 from the Responding Parties as follows:
Jan. 16 – 31, 2014 Hardware & Installation + Jan. 1-31 Commission Only
$86,019.08[^85]
February 1-28, 2014
$42,125.22[^86]
Installed orders to be inquired
$16,107.55[^87]
November Sales Rebate
$1,717.60[^88]
September Hardware Rebate
$2,203.50[^89]
December Sales Rebate
$5,193.76[^90]
January Sales Rebate
$3,186.60[^91]
Simcoe Blitz
$1,243.00[^92]
Amount short on January 2014 withdrawal
$300.00[^93]
Less: Amount owing to Mobile Zone from Net Connect Installation
$2,260.00[^94]
TOTAL OWING TO NET CONNECT I
$155,863.32
[146] I find the damages alleged by the Moving Parties are clear and are substantiated by the documentary evidence and the conduct of all Parties. The Responding Parties can only support their allegations with their own affidavits and documents authored by them for the purpose of litigation.
[147] I find that the Moving Parties established through meticulous detailed documentation and contemporaneous record keeping all of the amounts claimed to be owing in the amount of $155,863.32. The amounts claimed by the Moving Parties reconcile with the Shaw documentation as well as the internal invoicing prepared by the Moving Parties. The conduct between the parties in respect of method of payment is also consistent with the documentation supporting the payment and consistent with the oral Agreement of June 2012. I find the amounts owed to the Moving Parties are consistent with the business practice between the parties and those amounts ought to be paid by the Responding Parties to the Moving Parties.
[148] Accordingly, I find the Responding Parties jointly and severally owe the sum of $155,863.32 to the Moving Parties together with prejudgment and post-judgment interest in accordance with the Courts of Justice Act.
Permanent Injunction
[149] The test set out in RJR-MacDonald is not the test for permanent injunctions though some of the evidence that a Court would use to evaluate issues on an interlocutory injunction application might be also considered in evaluating whether the Court ought to exercise its discretion to grant final injunctive relief.[^95]
[150] To award final injunctive relief, a party is required to establish its legal rights. The Court must then determine whether an injunction is an appropriate remedy.[^96]
[151] I find that a permanent injunction is an appropriate remedy to encumber sufficient assets of the Responding Parties to ensure that further dissipation of assets does not occur so as to defeat Judgment from the Court. I find that the Moving Parties have established their legal rights to both the loans owed in $21,000 and damages proven in the amount of $155,863.32. In all of the circumstances in this case which includes the granting of a Mareva injunction, the transfer to Pakistan of funds owed to the Moving Parties and the continued dealing by the Responding Parties with their assets in face of court proceedings, a permanent injunction is an appropriate remedy.
[152] Accordingly, the Moving Parties are entitled to permanent injunction restraining all of the individual Defendants from selling, removing, dissipating, alienating, transferring, assigning, encumbering or similarly dealing with their individual assets in Ontario unless the total unencumbered value of that Defendant’s individual assets remains above $150,000, or such other amount deemed just by this court. My Order dated June 25, 2014 is hereby varied to increase the Defendants’ security from the sum of $100,000 to $150,000.
Weighing Evidence
[153] I find the Responding Parties rely entirely on unsupported allegations and documents created by them for the purpose of these proceedings. This evidence is repeatedly contradicted by documentary evidence, the conduct of the parties and reasonable common sense. I attach no weight to the evidence proffered by the Responding Parties
Evaluating Credibility
[154] I find the Responding Parties’ evidence, including specifically the bald and contradictory allegations made by Mr. Shahzad during examinations, is not credible.
[155] The following evidence from Mr. Shahzad illustrates the unreliability of his evidence and his willingness to be untruthful:
(i) Mr. Shahzad gave contradictory statements and disclosed contradictory documents regarding Systec and Telus Network’s compensation agreement, which is fundamental to the alleged losses sought in these proceedings.
(ii) Mr. Shahzad alleged that he was the subject of death threats in Pakistan before recanting this evidence and denying he even gave such evidence[^97];
(iii) The Responding Parties have continually retreated to generalized answers or unsupported allegations when specificity and evidence have been requested to substantiate their allegations.
Drawing Inferences
[156] I have drawn negative inferences regarding the Responding Parties’ allegations and evidence, or lack thereof based on the following:
(i) Mr. Shahzad and Ms. Damle lied about the alleged real reason for the termination of Net Connect’s access to Mobile Zone’s Bank Account when it was more reasonable to tell the truth. This lie allowed the Responding Parties to empty the Mobile Zone and Systec Bank Accounts while the Moving Parties stood idly by in belief of a lie told to them;
(ii) The Responding Parties dissipated $119,784.50 from the Mobile Zone Bank Account from February to March 20, 2014, without any reasonable explanation as to why these funds needed to be removed from the jurisdiction of Ontario;
(iii) On March 10, 2014, with specific knowledge of the impending Mareva injunction, $33,177.00 was removed from the Mobile Zone Bank Account and $60,000 from the Systec Bank Account by Mr. Shahzad and Ms. Damle[^98];
(iv) The Responding Parties have refused to move these proceedings forward without being forced to do so by not less than four court Orders;
(v) The Responding Parties allege that $282,000 in operating costs were sustained during an eight month period yet they failed to produce a single document which evidences these operating costs;
(vi) Ms. Damle’s and Mr. Shahzad’s conduct in no way accords with the allegations they have propounded including, but not limited to, attending the wedding of Mr. Laplante and Ms. Wunderlich and giving a cash gift when they now allege they were so distrustful of the Moving Parties that it was necessary to remove bank access and dissipate all available funds; and
(vii) Mr. Shahzad made false representations in March of 2013 emails when it was more reasonable for him to reference the alleged March and November 2013 Agreements. These false representations allowed Mr. Shahzad and Ms. Damle to return to Ontario and deplete the Mobile Zone and Systec Bank Accounts.
The Rule 45.02 Motion
[157] The Moving Parties seek a declaration that the funds held in trust by HGR Graham Partners LLP for property seized and preserved by the Plaintiff through its motion, brought under Rule 45.02 of the Rules of Civil Procedure, heard March 11, 2014. Counsel for the Responding Parties agree that if there was judgment in favour of the Moving Parties, the sum of approximately $64,101.49 plus accrued interest held by HGR Graham Partners LLP in trust be forthwith released to the sole control of Net Connect Installations Inc. It is so ordered that such funds held in trust by counsel for the Moving Parties be released to the sole control of Net Connect Installations Inc.
Rules 20.04(2.1) and 20.04(2.2)
[158] The enhanced fact-finding powers in Rule 20.04(2.1) may be used by the court on a motion for summary judgment unless it is in the interest of justice for them to be exercised only at trial.[^99]
[159] The interest of justice cannot be limited to the features of a trial, and must account for proportionality, timeliness and affordability otherwise the purpose of the newly granted summary judgment tools would be frustrated.[^100] To the contrary, the evidence must only be such that a Judge is confident that the dispute may be resolved fairly.[^101]
[160] It is generally not against the interest of justice to use the powers granted under Rule 20.04(2.1) if doing so would enable a judge to fairly and justly adjudicate a claim. What is ultimately fair and just will turn on the nature of the issues, the nature and strength of the evidence and what is proportional procedure.
[161] The issues at hand are the agreements alleged by the Responding Parties of which there is no evidence. The evidence contradicts these allegations and the parties never conducted themselves in accordance with these allegations. Accordingly, it is in the interest of justice for this court to exercise the powers granted by Rule 20.04(2.1) and 20.04(2.2).
[162] Ultimately, I find that there are no genuine issues requiring a trial. A trial can be avoided by using the powers provided pursuant to Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. The use of those powers is in the interest of justice. The application of those powers to this case leads to a fair and just result and they do serve the goals of timeliness, affordability and proportionality in light of this litigation as a whole. As a result, the Moving Parties’ Motion for Summary Judgment and other relief sought in the Notice of Motion is granted.
CONCLUSION
[163] For these reasons, the Moving Parties’ Motion for Summary Judgment is granted and a Judgment shall issue with the following terms:
A Declaration that Mobile Zone Inc., Mohammad Mr. Shahzad and Swati Damle are in breach of contract.
A Declaration that Mobile Zone Inc., Mohammad Shahzad and Swati Damle have unlawfully misappropriated funds properly owing to the Plaintiff Net Connect Installations Inc.
Judgment for damages in the amount of $155,836.32 against the Defendants, Mobile Zone Inc., Mohammad Shahzad, Swati Damle, jointly and severally, in favour of the Plaintiff, Net Connect Installations Inc., Charleen Wunderlich, Wayne Laplante and/or ICT North Inc., being sums owed to them which were unlawfully diverted by the Defendants, together with prejudgment interest thereon at the rate of 1.3 percent from March 11, 2014.
An Order that the BarrieSmall Claims Court file number 1598-14 is hereby transferred and joined with the within proceedings.
An Order that Net Connect Installations Inc., ICT North Inc., Wayne Laplante and Charleen Wunderlich shall have judgment with respect to the damages claimed in Barrie Small Claims Court file number 1598-14 against Mobile Zone Inc., Mohammad Shahzad. Swati Damle and Systec Communications Inc., jointly and severally, in the sum of $21,000 together with prejudgment interest thereon at the rate of 1.3 percent from September 30, 2014.
A Declaration that the Plaintiff Net Connect Installations Inc. is entitled to the funds seized in these proceedings under Rule 45.02 in the amount of $$64,101.49 and all interest accrued to date, which funds (the “trust funds”) are currently held in trust by HGR Graham Partners LLP.
An Order that the trust funds shall be released forthwith to the Plaintiff, Net Connect Installations Inc. by HGR Graham Partners LLP.
An Order dismissing the Counterclaim of Mobile Zone Inc., Mohammad Shahzad and Swati Damle as against all Defendants by Counterclaim.
An Order that Mobile Zone Inc., Mohammad Shahzad and Swati Damle provide to the Plaintiff, Net Connect Installations Inc. a detailed accounting of all sums withdrawn from the Mobile Zone Bank Account at the Canadian Imperial Bank of Commerce bearing account number 10-39814 (branch transit number 07132) between February and March 11, 2014, including copies of Mohammad Shahzad personal bank accounts for the same period.
A Tracing Order in respect of all sums of money which are found to have been unlawfully misappropriated by the Defendants, Mobile Zone Inc., Mohammad Shahzad and Swati Damle owing and payable to the Plaintiff, Net Connect Installations Inc. and received into the hands of third parties.
A permanent injunction restraining the Defendants, Mobile Zone Inc., Mohammad Shahzad and Swati Damle from selling, removing, dissipating, alienating, transferring, assigning, encumbering or similarly dealing with their assets in Ontario unless the total unencumbered value of each Defendant’s individual net worth remains above the sum of $150,000 until such time as enforcement of the judgment has been fully effected and satisfied (the “injunction”).
An Order that upon payment in full of all sums set out in the within judgment, including any awarded costs, the Defendants, Mobile Zone Inc., Mohammad Shahzad and Swati Damle shall have liberty to apply to this Court for an order releasing the injunction.
An Order that this judgment bears post-judgment interest from the date of judgment in accordance with the Courts of Justice Act.
Costs
[164] The parties have agreed that costs ought to be determined by way of written submissions. Within the next 30 days, the parties shall exchange and file with my judicial assistant at Barrie, a concise statement as to costs no longer than three pages in length, a costs outline, draft bills of costs together with any applicable authorities. Within that time period the exchange of written submissions would also include the Moving Parties’ reply submissions, if any.
DiTOMASO J.
Released: November 30, 2016
[^1]: 124777 Alberta Ltd. v. 480955 Alberta Ltd., 2014 ABQB 301 at para. 17
[^2]: Wunderlich Affidavit at paras. 13-15
[^3]: Wunderlich Affidavit at para. 28
[^4]: Wunderlich Affidavit at para. 18
[^5]: Wunderlich Affidavit at para. 20 and Exhibit “6” attached thereto
[^6]: Wunderlich Affidavit at para. 26
[^7]: Wunderlich Affidavit at para. 27
[^8]: Wunderlich Affidavit at para. 30
[^9]: Wunderlich Affidavit at para. 37; Affidavit of Swati Damle sworn March 14, 2016 at para. 60
[^10]: Wunderlich Affidavit at para 32
[^11]: Wunderlich Affidavit at paras 34 and 35 and Exhibit “13” attached thereto
[^12]: Wunderlich Affidavit at para 39
[^13]: Moving Parties Motion Record Volume I tab 13, page 287
[^14]: Wunderlich Affidavit at para 39
[^15]: Moving Parties Motion Record, Volume I Tab 11, page 264; email dated October 24, 2013
[^16]: Wunderlich Affidavit at para 105, Affidavit of Charleen Wunderlich sworn March 22, 2016 at para 6
[^17]: Wunderlich Affidavit at para 57 and Exhibit “26” attached thereto
[^18]: Harmony Co-ordination Services Ltd. v. Wickson, 1986 Carswell 725, 2 A.C.W.S. (3d) 226 at para 84
[^19]: Shahzad Transcript of November 12, 2015 at pages 314 to 316
[^20]: Shahzad Transcript of November 12, 2015 at page 265
[^21]: Statement of Defence and Counterclaim at para 24, Tab 36 of the Moving Parties’ Motion Record at page 580
[^22]: Cross-examination of Mohammad Shahzad on April 17, 2014 at page 86, lines 3 to 7; Affidavit of Swati Damle sworn March 14, 2016 at paras 38 and 39, Responding Record of the Defendants, Tab 1
[^23]: Shahzad Transcripts of November 5, 2015, at page 194
[^24]: Shahzad Transcripts of November 5, 2015, at page 194
[^25]: Shahzad Transcripts of November 12, 2015, at page 232
[^26]: Shahzad Transcripts of November 5, 2015, at page 194
[^27]: Shahzad Transcripts of November 5, 2015, at page 129
[^28]: Shahzad Cross-Examination of April 17, 2014 at pages 55 and 56
[^29]: Shahzad Transcripts of November 5, 2015, at page 129
[^30]: Shahzad Transcripts of November 5, 2015, at page 193
[^31]: Shahzad Transcripts of November 12, 2015, at pages 292 to 300
[^32]: Shahzad Cross-Examination of April 17, 2014 at page 96
[^33]: Shahzad Transcript of November 5, 2015 at page 208
[^34]: Shahzad Transcripts of November 5, 2015, at page 202
[^35]: Shahzad Transcripts of November 5, 2015, at page 205
[^36]: Shahzad Transcripts of November 12, 2015, at page 292 to 300
[^37]: Motion Record, Volume II, Tab 40, page 601
[^38]: Statement of Defence and Counterclaim at para 25(a), Tab 36 of the Moving Parties’ Motion Record at page 580
[^39]: Statement of Defence and Counterclaim at para 25(b), Tab 36 of the Moving Parties’ Motion Record at page 580
[^40]: Shahzad Transcript of November 12, 2015 at page 338, lines 5 to 16
[^41]: Statement of Defence and Counterclaim at para 25(c) Tab 36 of the p’ Motion Record at page 580
[^42]: Shahzad Transcript of November 12, 2015, at page 338, lines 20-25, and page 339, lines 1 to 2
[^43]: Statement of Defence and Counterclaim at para 25(d), Tab 36 of the Moving Parties’ Motion Record at page 581
[^44]: Statement of Defence and Counterclaim at para 25(e), Tab 36 of the Moving Parties’ Motion Record at page 581
[^45]: Statement of Defence and Counterclaim at para 25(f), Tab 36 of the Moving Parties’ Motion Record at page 581
[^46]: Statement of Defence and Counterclaim at para 25(g), Tab 36 of the Moving Parties’ Motion Record at page 581
[^47]: Statement of Defence and Counterclaim at para 28, Tab 36 of the Moving Parties’ Motion Record at page 581
[^48]: Wunderlich Affidavit, at paras 97-99 and Exhibits “43”, “44”and “45” attached thereto
[^49]: Wunderlich Affidavit, at paras 100-101 and exhibit “46” attached thereto
[^50]: Wunderlich Affidavit at paras 87 and 88
[^51]: Wunderlich Affidavit, at paras 40 and 41 and Exhibit “14” attached thereto
[^52]: Transcript of Examination of Discovery of Swati Damle (“Damle Transcript”) on November 27, 2015 at page 22, paras 12 to 108
[^53]: Shahzad Transcript of November 27, 2015 at page 58
[^54]: Answer for Undertakings of Mohammad Shahzad, Moving Parties’ Motion Record at page 811
[^55]: Wunderlich Affidavit, at paras 43 and 44, and Exhibits “16” and “17” attached thereto
[^56]: Wunderlich Affidavit at paras 56 and 46, and Exhibit “18” attached thereto
[^57]: Wunderlich Affidavit at para 47
[^58]: Wunderlich Affidavit at para 48 and Exhibit “19” attached thereto
[^59]: Answers for Undertakings, Tab 62, Moving Parties’ Motion Record at page 812; Wunderlich Affidavit at para 49
[^60]: Wunderlich Affidavit at para 50 and Exhibit “20” attached thereto
[^61]: Wunderlich Affidavit at para 52 and Exhibit “22” attached thereto
[^62]: Wunderlich Affidavit at paras 53 and 54 and Exhibit “23” attached thereto
[^63]: Wunderlich Affidavit at para 55 and Exhibit “24” attached thereto
[^64]: Wunderlich Affidavit at paras 59 and 60 and Exhibits “27” and “28” attached thereto
[^65]: Wunderlich Affidavit at paras 63 to 69 and Exhibits “31” and “32” attached thereto
[^66]: Wunderlich Affidavit at paras 109 and 110 and Exhibits “51” and “52” attached thereto
[^67]: Wunderlich Affidavit at paras 57 to 59 and Exhibits “22”, “23” and “24” attached thereto
[^68]: Wunderlich Affidavit at para 60 and Exhibit “25” attached thereto
[^69]: Wunderlich Affidavit at para 61 and Exhibit “26” attached thereto
[^70]: Wunderlich Affidavit at para 62 and Exhibit “27” attached thereto
[^71]: Wunderlich Affidavit at paras 100 to 101 and Exhibit “46” attached thereto
[^72]: Wunderlich Affidavit at para 102
[^73]: Wunderlich Affidavit at para 103 and Exhibit “47” attached thereto
[^74]: Shahzad Transcripts on November 12, 2015 at pages 374-379
[^75]: Wunderlich Affidavit at Exhibit “46”
[^76]: Wunderlich Affidavit at paras 100 to 104 and Exhibits “46”, “47” and “48” attached thereto
[^77]: Wunderlich Affidavit at para 69 and Exhibits “34” and “35” attached thereto
[^78]: Wunderlich Affidavit at para 70 and Exhibit “36” attached thereto
[^79]: Statement of Defence and Counterclaim at para 5(c), Tab 36 of the Moving Parties’ Motion Record at Page 574
[^80]: Statement of Defence and Counterclaim at para 44(e), Tab 36 of the Moving Parties’ Motion Record at Page 584
[^81]: Statement of Defence and Counterclaim at para 44(d), Tab 36 of the Moving Parties’ Motion Record
[^82]: Statement of Defence and Counterclaim at para 24, Tab 36 of the Moving Parties’ Motion Record at page 580
[^83]: Statement of Defence and Counterclaim at paras 51 to 56 of the Moving Parties’ Motion Record at page 586-587
[^84]: Statement of Defence and Counterclaim at para 25 of the Moving Parties’ Motion Record at page 580
[^85]: Wunderlich Affidavit at para 139 and Exhibit “73” attached thereto
[^86]: Wunderlich Affidavit at para 140 and Exhibit “74” attached thereto
[^87]: Wunderlich Affidavit at para 141 and Exhibit “75” attached thereto
[^88]: Wunderlich Affidavit at para 142 and Exhibit “76” attached thereto
[^89]: Wunderlich Affidavit at para 143 and Exhibit “77” attached thereto
[^90]: Wunderlich Affidavit at para 143 and Exhibit “77” attached thereto
[^91]: Wunderlich Affidavit at para 144 and Exhibit “78” attached thereto
[^92]: Wunderlich Affidavit at para 144 and Exhibit “78” attached thereto
[^93]: Wunderlich Affidavit at para 33 and145
[^94]: Wunderlich Affidavit at para 146 and Exhibit “79” attached thereto
[^95]: Schooff v. British Columbia (Medical Services Commission), 2010 BCAA 396, 2010 Carswell B.C. 2365, at para 27
[^96]: Ibid at para 28
[^97]: Shahzad Transcript of November 5, 2015 at page 79
[^98]: Damle Transcript of November 27, 2015 at page 36, line 11 to 30
[^99]: Hryniak v. Mauldin at para 52
[^100]: Hryniak v. Mauldin at para 56
[^101]: Hryniak v. Mauldin at para 57