Court File and Parties

COURT FILE NO.: CV-16-565772 DATE: 20170705 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: AMGAD, INC. Plaintiff / Defendant by Counterclaim – and – MARQUEE EQUITY INC. Defendant / Plaintiff by Counterclaim

COUNSEL: Assunta Mazzotta for the Plaintiff / Defendant by Counterclaim Steve Carr for the Defendant / Plaintiff by Counterclaim

HEARD: June 20, 2017

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] The Plaintiff, Amgad, Inc., brings a summary judgment motion for payment of $50,895.55 (U.S. dollars) in equivalent Canadian dollars and for an order dismissing the counterclaim of the Defendant Marquee Equity Inc., which claims $1.0 million in damages for slander and intentional interference of contractual and business relations.

[2] For the reasons that follow, I grant summary judgment to Amgad, Inc. on its claim and I dismiss the counterclaim.

B. Factual and Procedural Background

[3] Amgad, Inc. is a diamond wholesaler that, beginning in 2011, sold diamonds to Marquee Equity Inc., which is a colored diamond investor and diamond reseller.

[4] Until March of 2016, Amgad’s representative in Canada was David Bregman, and during Mr. Bregman’s tenure there was an informal agreement between Amgad and Marquee that if Marquee’s account balance was below $50,000, then the diamonds would be delivered without payment in advance, and if the account balance exceeded $50,000, then additional orders would require cash on delivery plus 10% on account of reducing the account balance. Marquee did not have an exclusive arrangement with Amgad and was free to purchase diamonds from other merchants. The business arrangements between Amgad and Marquee were not formalized in writing and were not immune to change.

[5] Marquee would order diamonds, and after delivery of the diamonds, Marquee would be invoiced for payment. Marquee would make payments from time to time, and Amgad would attribute payments to various outstanding invoices. From time to time, Amgad would issue statements of account reflecting what the balances were on the outstanding invoices. Between 2011 and 2016, Marquee made purchases and payments approaching $1 million (U.S. dollars).

[6] In March 2016, Mr. Bregman was terminated as Amgad’s Canadian representative. Amnon Gad of the City of New York, the president of Amgad, began to deal directly with Marquee’s representatives, and it appears that the cordial and informal arrangements between the parties soured.

[7] In April 2016, Amgad demanded payment of $50,895.55 (U.S. dollars), which was the outstanding balance for the diamonds sold and delivered. This sum was never paid and remains outstanding.

[8] As confirmed during the argument of the summary judgment motion, Marquee admits that it owes money to Amgad, but without providing its own explanation of what the correct balance was, it disputed the amount it owed. Instead, Marquee submitted that Amgad’s accounting practices and records were rife with errors and Marquee pointed to alleged discrepancies between the invoices and the Statements of Account.

[9] I, however, find as a fact that Amgad is owed $50,895.55 (U.S. dollars). No errors or discrepancies were proven, and to the extent that there were inconsistencies between invoices and the Statements of Account those inconsistencies disappeared or were explained away by the difference in timing between the issuance of the invoices and the attribution and posting of credits.

[10] There is no genuine issue for trial in the main action and no need for a reference or an accounting.

[11] Turning to the counterclaim, it is based on events after the business relationship between Amgad and Marquee soured and Marquee stopped making payments. There is no evidence that Amgad breached its informal contract with Marquee.

[12] After Mr. Bregman’s departure, Mr. Gad requested payments from Steven Carr, Marquee’s manager, but when these efforts proved futile, he engaged a trade association, the Jewellers Board of Trade, which provided a collection service for the diamond industry, to collect the outstanding account. These efforts also proved futile, and Amgad sued Marquee by Statement of Claim that was issued in December 2016.

[13] Sometime around the time of the failed collection efforts of Mr. Gad and the Jewellers Board of Trade, Mr. Gad attended the JCK Trade Show, which is the largest diamond trade show in North America.

[14] Thomas Steele, who is the sole officer, director, and shareholder of Marquee Equity Inc. deposed that he spoke to Binny and Shuly Eizicovics, who were also in attendance at the Trade Show. The Eizicovics are the principals or representatives of Remy Sales, another diamond wholesaler, from whom Marquee purchased and continues to purchase diamonds.

[15] Marquee alleges that at the JCK Trade Show, Mr. Gad defamed Marquee and that it intentionally set out to harm Marquee and to interfere with its business relationship with Remy Sales. Thus, Marquee pleads in paragraphs 19-22 of its Statement of Defence and Counterclaim:

19. Marquee states and the fact is that once Amgad and Bregman “parted company” and Amgad breached its contract as more particularly set out in paragraphs 11, 12 and 13 of the Statement of Defence, Amnon acting on behalf of Amgad set out on a deliberate path with malice to slander Marquee. Specifically, Amgad deceitfully engaged the services of the Jewellers Board of Trade in an effort to harm Marquee’s reputation in the trade. In addition, Amnon told as many parties as would listen and more specifically an actual supplier/wholesaler that Marquee was currently purchasing from [i.e., Remy Sales] “that the companies up in Toronto [i.e. Marquee] are no good and you should not deal with them as they do not pay their bills.”
20. Marquee states and the fact is that this statement was untrue and that Amnon knew it at the time and used it as strategy to attempt to collect monies which he knew were in dispute.
21. As a direct result of this slander and the deliberate and calculated actions of Amgad, Marquee’s reputation in the trade and more specifically with its suppliers has been irreparably harm [sic] causing Marquee to suffer economic losses which are estimated to be in excess of $1,000,000.
22. In addition, the harm cause [sic] to Marquee’s reputation, Marquee has suffered additional losses in revenue which results from Amgad’s intentional interference with Marquee’s business relationships with other suppliers and trade which damages are estimated to be in excess of $500,000.

[16] None of the allegations in paragraphs 19-22 were proven. For the purposes of the summary judgment motion, Marquee did not request affidavits from the Eizicovics, and Mr. Steele deposed that he did not request summonses because it would not be in Marquee’s best interests to trouble them since it continues to do business with Remy Sales.

[17] For the purposes of the summary judgment motion, Marquee did not cross-examine Mr. Gad and it proffered no evidence to substantiate its bald allegations that Amgad acted maliciously or with any intent to harm Marquee. Marquee produced no evidence whatsoever to substantiate that it had suffered economic or business losses. It provided no evidence about what it actually owed Amgad, and, as I noted above, during the course of argument, its representative admitted that moneys were indeed owing by Marquee to Amgad.

C. Discussion and Analysis

1. The Test for Summary Judgment

[18] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” With amendments to Rule 20 introduced in 2010, the powers of the court to grant summary judgment have been enhanced. Rule 20.04(2.1) states:

20.04 (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:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[19] In Hryniak v. Mauldin, 2014 SCC 7 and Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, the Supreme Court of Canada held that on a motion for summary judgment under Rule 20, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers introduced when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

[20] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rules 20.04(2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.

[21] Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial: Dawson v. Rexcraft Storage & Warehouse Inc., [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 18 O.R. (3d) 481 (C.A.); Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 SCR 372 at para. 11. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 255 (Gen. Div.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), aff’d [1997] O.J. No. 3754 (C.A.).

[22] To grant summary judgment, on a review of the record, the motions judge must be of the view that sufficient evidence has been presented on all relevant points to allow him or her to draw the inferences necessary to make dispositive findings: Ghaeinizadeh (Litigation guardian of) v. Garfinkle Biderman LLP, 2014 ONSC 4994, leave to appeal to Div. Ct. refused, 2015 ONSC 1953 (Div. Ct.); Lavergne v. Dominion Citrus Ltd., 2014 ONSC 1836 at para. 38; George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001.

2. The Merits of the Claim and the Counterclaim

[23] The case at bar is an appropriate case for a summary judgment. There are no genuine issues requiring a trial in the claim or in the counterclaim.

[24] Based on the evidence, including the admission made during the course of argument, which actually did not have to be made because it simply confirmed the evidence on the record, Mr. Gad spoke the truth when he told the Eizicovics that Marquee was not paying its bills and it was risky doing business with them.

[25] There is no defamation in hiring a collection agency to collect bills that have not been paid. In any event, there is no evidence that Marquee’s reputation or business has suffered, and it continues to do business with Remy Sales, so it would appear to be nothing to the allegation that its business relationship with Remy Sales has been harmed.

[26] Truth is a complete defence to a defamation claim. See Daboll v. DeMarco, 2011 ONSC 1 at para. 26; Mian v. Mahdi, [1995] O.J. No. 1722 (Gen. Div.).

D. Conclusion

[27] For the above reasons, I grant Amgad’s summary judgment motion.

[28] If the parties cannot agree about costs, they may make submissions in writing beginning with Amgad’s submissions within 20 days of the release of these Reasons for Decision followed by Marquee’s submissions within a further 20 days.

Perell, J.

Released: July 5, 2017

COURT FILE NO.: CV-16-565772 DATE: 20170705 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: AMGAD, INC. Plaintiff / Defendant by Counterclaim – and – MARQUEE EQUITY INC. Defendant / Plaintiff by Counterclaim REASONS FOR DECISION PERELL J. Released: July 5, 2017