CITATION: Trade Capital v. Cook, 2017 ONSC 7157
COURT FILE NO.: CV-15-2110-00
DATE: 20171204
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
TRADE CAPITAL FINANCE CORP.
(Plaintiff/Responding Party)
- and-
PETER COOK also known as PETER WILLIAM COOK, MARC D’AOUST also known as JEAN MARC D’AOUST, THOMAS BARKER also known as THOMAS RICHARD BARKER (personally and carrying on business as LC EXCHANGE, GLOBAL MEDICAL and GREENLINK CANADA GROUP), ROCKY RACCA, BRUNO DIDIOMEDE also known as BRUNO DIAIOMEDE, ALAN KEERY also known as ALAN JOHN KEERY, CHRIS BENNETT JR. also known as CHRIS BENNETT also known as CHRISTOPHER BENNETT (personally and carrying on business as CJR CONSULTING), TODD CADENHEAD, DA YA W ANSA WICKRAMASINGHE, BONNY LOKUGE also known as DON BONNY LOKUGE, VIRTUCALL INC., VIRTUCALL INTERNATIONAL LLC, DEBT RESOLVE-MORTGAGE FUNDING SOLUTIONS INC. carrying on business as DEBTRESOLVE INC., THE CASH HOUSE INC., 1160376 ONTARIO LIMITED operating as THE CASH HOUSE, 2242116 ONTARIO INC. carrying on business as SUPERIOR MEDICAL SERVICES INC. and SUPERIOR MEDICAL SERVICES, CARLO DE MARIA also known as CARLO VINCE DE MARIA also known as CARLO VINCENT DE MARIA also known as CARLO VINCENZO DE MARIA, MATTEO PENNACCHIO, FRANK ZITO also known as FRANCESCO ZITO, SIMONE SLADKOWSKI, JOBEC TRADE FINANCE INC., 1461350 ONTARIO INC., 2299430 ONTARIO INC., WF CANADA LTD., JOBEC INVESTMENTS RT LTD., GREEN LINK CANADA INC., 2339989 ONTARIO INC., 2252364 ONTARIO INC., 2224754 ONTARIO LTD., 6980023 CANADA INC. operating as LIVING BENEFITS and MILLWALK ENTERPRISES INC.
(Frank Zito/Moving Party)
BEFORE: Ricchetti, J.
COUNSEL: P. Viater, for Frank Zito, the Moving Party P. Carey, for the Plaintiff (“Trade Capital”)
HEARD: October 26, 2017
ENDORSEMENT
THE MOTION
[1] Frank Zito brings this summary judgment motion under Rule 20 seeking a dismissal of the action against him.
BACKGROUND
[2] Trade Capital is a factoring company. Trade Capital accepts the assignment of invoices from the invoice payee; Trade Capital pays the invoice payee an agreed upon percentage of the face amount of the invoice; then the Trade Capital proceeds to collect the invoice from the invoice payor.
[3] There is no dispute that Trade Capital was the subject of an extensive and complex fraudulent scheme. Certain invoices factored by Trade Capital were fraudulent. This complex fraud involved numerous persons and companies and the extensive flow of funds, often cash, through many persons and companies.
[4] To perpetrate this fraud, a payee (who was in on the fraud) would enter into an agreement with Trade Capital to factor certain invoices expected to be received from a recognized payor such as Enbridge. Often, a copy of a fictitious service agreement between the recognized payor and the fraudulent payee would be provided to Trade Capital to establish a fictitious ongoing arrangement between the payor and payee pursuant to which the fictitious invoices would be generated. While appearing to be executed by the recognized invoice payor, the fictitious service agreement was in reality executed by one of the persons involved in the fraud. Next, an agreement would be entered into between Trade Capital and the recognized invoice payor providing that the recognized invoice payor would pay Trade Capital the face amount of the factored invoices. This agreement was also signed by one of the perpetrators of the fraud rather than the recognized invoice payor. The perpetrators of the fraud would then produce fraudulent invoices from the recognized invoice payor to the fraudulent invoice payee and present them to Trade Capital for payment. On some occasions, Trade Capital would seek confirmation from the recognized invoice payor that the specified fraudulent invoices were valid and outstanding. This confirmation would be provided by someone involved in the fraud, either a fraudster working for the payor or at least from someone who appeared to be the invoice payor. Trade Capital would pay the fraudulent invoice payee a portion of the invoice and look to the recognized invoice payor for payment of the invoice.
[5] The involvement of someone on the inside of the invoice payor or someone who appeared to be authorized within the invoice payor's company was essential for this fraud to work.
[6] The fraudulent scheme involving Trade Capital began in 2011. There were numerous fraudulent invoice payees, fraudulent invoices and numerous individuals involved in perpetrating this fraud against Trade Capital.
[7] Some of the individuals and companies involved in this fraud included:
a) Peter Cook;
b) Marc D'Aoust; and
c) Virtucall Inc., Virtucall International LLC (“Virtucall”).
[8] Mr. Cook and Mr. D’Aoust admitted to participating or orchestrating this fraudulent scheme and using, in some cases, Virtucall as an invoice payee.
[9] In and around September 2013, the fraudulent scheme began to unwind. Trade Capital became concerned certain invoices were fraudulent. Within a short time, the fraudulent nature of the factored invoices was uncovered. The amount allegedly defrauded from Trade Capital was approximately $5,000,000 CDN and $1,500,000 USD.
[10] Trade Capital’s payment of the fraudulent invoices was paid to a number of fraudulent payees and eventually disbursed to some of the personal and corporate Defendants.
[11] In late 2013, Trade Capital obtained various court orders regarding this fraudulent scheme, including a Mareva Order.
THE CENTRAL ISSUE
[12] Was Mr. Zito the inside person at Enbridge to facilitate this fraud or did the fraudsters use Mr. Zito’s stolen identity through a phoney email address to perpetrate the fraud on Trade Capital?
[13] The entities, as they relate to this motion, are:
a) Trade Capital, the factoring company;
b) Enbridge Gas Distribution Inc. (“Enbridge”) as the invoice payor;
c) Virtucall, the fraudulent invoice payee;
d) Mr. Cook and Mr. D’Aoust, two senior persons perpetrating the fraud;
e) Mr. Racca, also a central figure in the fraud and who worked with Mr. D’Aoust regarding Virtucall; and
f) Frank Zito, an employee of Enbridge.
THE POSITION OF THE PARTIES
[14] Frank Zito’s counsel submits that the uncontradicted evidence establishes:
a) Frank Zito was the subject of identity theft; and
b) Frank Zito was one of the persons defrauded.
[15] In summary, Mr. Zito submits that, based on the evidence on this motion, no trial is required to determine that the claim against Mr. Zito should be dismissed.
[16] Trade Capital submits that the motion should be dismissed because:
a) There is substantial evidence that Frank Zito was involved in the fraud;
b) The defences, that this was identify theft, is without merit and unsupportable on the evidence; and
c) Complete disclosure has not been made by all the Defendants.
THE LAW
[17] The test for summary judgment motions is not in dispute. Rule 20.04(2) permits a Court to grant summary judgment where “(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence”.
[18] Rule 20.04 (2.1) confers powers on a judge in a summary judgment motion:
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.
[19] The approach for summary judgment motions was summarized by Corbett, J. in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200:
[33] As I read Hryniak, the court on a motion for summary judgment should undertake the following analysis: 1) The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;
On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;
If the court cannot grant judgment on the motion, the court should:
a. Decide those issues that can be decided in accordance with the principles described in 2), above;
b. Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;
c. In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.
[34] The Supreme Court is clear in rejecting the traditional trial as the measure of when a judge may obtain a “full appreciation” of a case necessary to grant judgment. Obviously greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it. But the test is now whether the court’s appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured.
[20] In Hryniak v. Mauldin, 2014 SCC 87, the Supreme Court clarified the test to apply on a summary judgment motion. There will be no genuine issue requiring a trial if the evidence permits the court to make a fair and just determination on the merits. What is a "fair and just determination on the merits" depends on the nature of the issues and the evidence on the summary judgment motion. A fair and just determination on the merits can be made where the evidence: (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[21] The “guiding consideration” in each case “must be whether the summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court.”
THE FACTS
Relating to the allegation of “stolen identity”
[22] Mr. Zito worked at Enbridge. Mr. Zito has considerable experience in financing. That was his job at Enbridge. Mr. Zito’s email address at Enbridge was frank.zito@enbridge.com (the “ZitoEnbridge email address”).
[23] Virtucall’s fraudulent invoices, purported to be payable by Enbridge, were factored by Trade Capital starting in May 2013.
[24] There is an Agreement for Service, dated May 9, 2013, between Enbridge and Virtucall purported to be signed by Mr. Zito. Mr. Zito denies it is his signature. Mr. Zito points to a lack of similarity to his signature in other documents. Mr. Cook believes the agreement was signed by Mr. D’Aoust or himself. There are credibility issues with Mr. Cook’s evidence. While I agree there are or may be some dissimilarities in the signatures, this court cannot determine whether the documents are or are not signed by the same person without some expert opinion evidence. In any event, whether Mr. Zito signed the Agreement for Service is not material to the disposition of this motion.
[25] There is an email address which becomes significant in this motion: frank.zito@telus.blackberry.net (“ZitoBlackberry email address”). Mr. Zito states this is not his email address but was fraudulently created by the fraudsters to give the appearance that he, the real Frank Zito employed by Enbridge, had confirmed the fraudulent Virtucall invoices were genuine. Mr. Zito states that he only found out about the ZitoBlackberry email address recently during the criminal proceedings. This is the lynch pin to Mr. Zito’s allegation that his identity was stolen.
[26] As will be discussed below in detail, there are numerous emails to/from both email addresses between May 2013 and September 2013 which are material to whether this court can rule on the merits, fairly and justly, without a trial.
[27] On September 4, 2013, Susan Thompson, on behalf of Trade Capital, wrote to Mr. Zito at the ZitoEnbridge email address asking for an update as to when Trade Capital could expect payment of the Virtucall invoices. There is no response.
[28] On September 11, 2013 Peter Cook followed up on the September 4, 2013 email with Mr. Zito at the ZitoEnbridge email address again asking for an update.
[29] Mr. Zito forwarded the emails to a number of managers in Enbridge, asking whether either of them were “familiar with any invoice from this organization”.
[30] No one at Enbridge recognized Virtucall as a supplier to Enbridge and advised Mr. Zito of this.
[31] Mr. Zito then responded to "Peter" advising that he was not aware of any monies owed for invoices to Virtucall.
[32] Email communications continued afterwards for a very short period of time but they came from the ZitoBlackberry email address. In one instance, an email from Trade Capital was sent to Mr. Zito at BOTH the ZitoEnbridge email address AND the ZitoBlackberry email address with invoice numbers, dates and amounts.
[33] The fraud had unravelled.
Relating to the allegation Mr. Zito was defrauded
[34] Mr. Zito received cheques from Rocky Racca, one of the persons involved in the fraud. Mr. Zito explains that the payments to him from Mr. Racca (not the companies) were, not for his participation in the fraud, but rather a return on his investment in Virtucall - the very company involved in the fraudulent scheme as the invoice payee.
[35] Mr. Zito alleges that he invested in Virtucall in 2012. Mr. Zito produced two Scotiabank bank drafts in the total amount of $25,000 dated July 30, 2012. One (for $20,000) was payable to Silver Seven Corp. Inc. and the second (for $5,000) was payable to Virtucall Inc. Mr. Zito also produced a Toronto Dominion Bank cheque dated July 30, 2012 for $25,000 payable to Virtucall Inc.
[36] Mr. Zito states that he, and his sister, made this investment because he was “approached by one of the other fraudsters Rocky Racca who gave me an opportunity to invest in Virtucall and Silver Seven Corp Inc.”
[37] However, the Zito payments to Virtucall and Silver Seven Corp Inc. are also referred to in the materials and Mr. Zito’s cross examination as a "loan". Mr. Racca’s repayment cheques referred to a “loan”. Was Mr. Zito’s payments to Virtucall an investment or was it a loan? In either case, there is insufficient evidence to conclude whether this was an “investment” or a "loan" to Virtucall. Or, something else.
[38] In his materials, Mr. Zito produced two payments from Mr. Racca:
a) The first cheque was dated July 16, 2013, in the amount of $7,500 payable from Mr. Racca’s personal bank account; and
b) The second cheque was dated November 28, 2013 in the amount of $1,855 also payable from Mr. Racca’s personal bank account.
[39] In Trade Capital's materials, Trade Capital produced further cheques from Mr. Racca to Mr. Zito in the amount of $3,075 and $7,500, as well as a number of other bank drafts payable to Mr. Zito.
THE ANALYSIS
The Evidence of Mr. Cook, Mr. D’Aoust and Mr. Racca
[40] The evidence of Mr. Cook, Mr. D’Aoust and Mr. Racca is suspect. They are admitted fraudsters. Are they telling the truth that Mr. Zito was not involved in the fraud or are they covering up for Mr. Zito’s involvement in the fraud?
[41] There are also inconsistencies between Mr. Zito’s evidence and some of the evidence of these fraudsters:
a) there is an inconsistency regarding the purpose of Mr. Zito’s payments to Virtucall and the purpose of the payments to Mr. Zito. Much of the evidence of these fraudsters makes no sense in light of the email communications prior to the discovery of the fraud in September, 2013. The fraudsters appear, in their prior emails, to know and use both the Zito email addresses, on one occasion even suggesting that Mr. Zito be copied at the ZitoEnbridge email address to further the fraud;
b) Mr. D’Aoust stated that he gave money to Mr. Racca who then gave money to Mr. Zito. This routing of money is very suspicious;
c) Mr. D’Aoust didn’t recognize Silver Seven Corp Inc.;
d) After the fraud was discovered, Mr. Cook confessed that he had an “insider” in Enbridge. Was this true? Was it Mr. Zito? Is it inconsistent with Mr. Cook now stating that Mr. Zito was not involved; and
e) The evidence of these fraudsters is also nuanced. Mr. D’Aoust states that he didn’t speak to Mr. Zito before setting up the ZitoBlackberry email account. This simply begs the question whether Mr. D’Aoust spoke to Mr. Zito about the ZitoBlackberry email account after it had been set up and prior to September 11, 2013. Mr. D’Aoust did not deny that Mr. Zito was involved in the fraud – only that he did not know what Mr. Zito knew about the fraud.
[42] Findings needs to be made regarding the nature and purpose of the payments to and from Mr. Zito. The evidence is inconsistent and significant to the claims/defences made in this proceeding. On this evidence, such findings cannot be made in a fair and just manner. In my view, even with the court’s ability to make findings of credibility and draw inferences, these issues can only be properly and fairly decided on a full evidentiary record of a trial rather than conflicting affidavits and cross examinations. This favours the matter proceeding to a trial.
Mr. Zito was not party to the Fraud - His Identity was Stolen
[43] Mr. Zito points to two key facts that his identity was stolen:
a) He states someone else created the frank.zito@telus.blackberry.net – it is not his email address. Mr. Zito points to some support for this position from Mr. Cook and Mr. D'Aoust; and
b) Mr. Zito went to his managers at Enbridge on September 11, 2013 to enquire about the Virtucall invoices. Mr. Zito states that he took active steps to canvass the suspicious emails and would not have done so, if he had been involved in the fraud.
[44] Whether Mr. Zito did or did not create the ZitoBlackberry email address is not determinative of this motion. There is evidence capable of establishing that Mr. Zito was aware of the ZitoBlackberry email address during the fraud and its use to perpetrate the fraud. The evidence may establish a connection between Mr. Zito and the ZitoBlackberry email address and Mr. Zito’s possible involvement in the fraud. This evidence includes:
• Trade Capital sent an email to Mr. Zito at the ZitoEnbridge email address on May 21, 2013 regarding a notification from Virtucall Inc. to Enbridge. This email was a Notification “from Virtucall” “for Enbridge”. The attachment is a letter, dated May 17, 2013, which essentially puts on notice Mr. Zito, on behalf of Enbridge, that Enbridge is to pay Trade Capital the sum of $312,298 for outstanding invoices to Virtucall. First, it makes little sense for the fraudsters to have sent this email to Mr. Zito at his real Enbridge email address unless he was involved in the fraud. Second, Mr. Zito raised no concerns at Enbridge regarding this email despite the fact, Trade Capital was claiming a substantial amount of money to be paid by Enbridge. If Mr. Zito was not involved in the fraudulent scheme, one would have expected Mr. Zito raise concerns within Enbridge as to this obvious fraudulent scheme;
• Emails were sent in July 2013 to “Frank Zito” from Trade Capital. I agree it is not clear from these emails who they were sent to - the ZitoEnbridge email address or the ZitoBlackberry email address. However, On August 20, 2013 Trade Capital sent another email to “Frank Zito” seeking payment from Enbridge of Virtucall invoices. This email was sent to Mr. Zito at BOTH the ZitoBlackberry email address AND the ZitoEnbridge email address. "Frank Zito" appears followed in brackets by his ZitoEnbridge email address. More importantly, the two email addresses bearing his name and the subject matter should have caused great concern to Mr. Zito if he was not involved in the fraud. Mr. Zito would have clearly seen the ZitoBlackberry email address and the demand for money from Enbridge. Yet, Mr. Zito did nothing. This evidence is capable of establishing Mr. Zito was aware of and participated in the use of the ZitoBlackberry email address during the fraud and not, as he states, only become aware of the ZitoBlackberry email address during Mr. Cook’s recent criminal proceeding;
• On August 22, 2013, there is a response to Trade Capital’s August 20, 2013 email from the ZitoBlackberry email address but it was copied to the ZitoEnbridge email address. This response confirms payment will be made to Trade Capital by Enbridge. If Mr. Zito was not involved in the fraud, when he received this email at his ZitoEnbridge email address showing it was addressed to another Frank Zito with a different email address, one would expect that he would have become concerned and taken some action at least in Enbridge. Mr. Zito did nothing;
• Some of the emails were copied to Mr. D’Aoust, whom Mr. Zito knew well. Yet, Mr. Zito did nothing to follow up on these emails with Mr. D'Aoust to ascertain what was going on with respect to the Virtucall invoices;
• On September 11, 2013 at 2:14 p.m., Trade Capital sent an email to both the ZitoEnbridge email address and the ZitoBlackberry email address – this too should have raised a red flag with Mr. Zito but there is no evidence of any follow up steps he took at Enbridge;
• The Virtucall invoices to Enbridge are addressed to Mr. Zito and refer to the ZitoEnbridge email address. If the fraudsters were using the ZitoBlackberry email address, why put on Mr. Zito's real Enbridge email address? There would be a risk that someone at Trade Capital would use Mr. Zito's email address on the invoices to ask him questions and the fraud would be discovered;
• It would appear from email exchanges between the alleged fraudsters, Mr. Cook and Mr. D’Aoust, in the middle of August 2013, that they appear to be aware of (and use for the purpose of perpetrating the fraud) both of Mr. Zito’s email addresses. Mr. Cook and Mr. D’Aoust’s denial that Mr. Zito was involved, at least on its face, appear to be inconsistent with the contents of these emails;
• Trade Capital attempted to have Enbridge confirm additional Virtucall invoices in late August 2013. That did not occur because Mr. Zito was on holidays (see August 22, 2013 email which was copied to the ZitoEnbridge email address). The confirmation came from the ZitoBlackberry email address. When Trade Capital followed up on September 4, 2013 to the ZitoEnbridge email address, the email specifically refers to Mr. Zito’s having been away on holidays. Was it a coincidence that Trade Capital knew of Mr. Zito’s holidays during that period of time or was Mr. Zito using or aware of the ZitoBlackberry email address? and
• Mr. Zito’s evidence that he ignored the emails to the ZitoEnbridge email address because he thought it was a spam email makes little sense. Given the information related to a company in which Mr. Zito had an investment or loan, the ZitoBlackberry emails he had received, knowing Mr. D’Aoust at Virtucall, the nature of the requests for monies from Enbridge, simply ignoring the emails makes little sense.
[45] With respect to Mr. Zito’s actions of reporting to his managers on September 11, 2013, those actions could be viewed with caution and suspicion:
• the fraudulent scheme had already started to unravel by the time he sent this email;
• he did not tell any manager that Virtucall was a company he had invested in or loaned money to;
• he did not tell them he knew Mr. D’Aoust, a senior person at Virtucall;
• he did not tell them he had received emails referring to another “Frank Zito” with a Blackberry email address;
• he did not tell them about the emails regarding Virtucall and Enbridge he had received prior to September 11, 2013; and
• when Mr. Zito forwarded the September 11, 2013 Trade Capital email, Mr. Zito’s question to the managers that he did not know how “they” got his name rings hollow given his prior communications with Trade Capital, Mr. Cook, Mr. D’Aoust and Virtucall showing both email addresses.
[46] In short, Mr. Zito’s role in the fraud, if any, cannot be determined in a fair and just manner based on the evidence on this motion.
Mr. Zito’s claim he was a victim of fraud
[47] Mr. Zito produced nothing with respect to this alleged investment or loan in Virtucall or Silver Seven Corp Inc. No information as to why he invested in these companies, no documents or other proof that he made/received an “investment interest” or loan documentation. There are no documents regarding this alleged investment or loan at all.
[48] There is no explanation why Mr. Racca paid him personally for his alleged investment in the companies.
[49] There is no explanation why one of Mr. Racca’s cheques refer to a “loan” rather than an investment. However, I note that Mr. Zito agreed in his cross-examination that he had “loaned” Mr. Racca $25,000 rather than an investment.
[50] Mr. Zito did not disclose this “investment” or “loan” in his affidavit of assets pursuant to the Mareva Order.
[51] Mr. Racca denies that Mr. Zito “invested” in Virtucall. Mr. Racca stated that he paid monies to Mr. Zito because he had been told to do so by Mr. D’Aoust – another alleged fraudster.
[52] Mr. D’Aoust stated that the money from Mr. Zito to Virtucall was a “loan” but he did not recognize the company Silver Seven Corp Inc.
[53] There are many questions regarding the dealings between Mr. Zito, Virtucall and Mr. Racca regarding this alleged loan or investment.
[54] I am not persuaded that this court can make a fair and just determination on this evidence as to whether Mr. Zito was a victim of the fraud or whether Mr. Zito’s receipt of some monies from the fraudsters connects him to this complex fraudulent scheme involving Virtucall and Trade Capital. The Defence submission that Mr. Zito invested in a “legitimate” company, Virtucall, is one conclusion of fact but is only one possible conclusion, the other being that Virtucall was the means for perpetrating the fraudulent scheme in which Mr. Zito was involved.
[55] This is a further significant reason why this summary judgment motion must be dismissed.
Lack of Disclosure from other Defendants
[56] I agree that this proceeding has been outstanding for some time. Trade Capital cannot rely on the fact that other Defendants have not yet provided their Affidavit of Documents or made full disclosure. This motion can and is decided on the evidentiary record before this court.
Facts which are not material to this motion’s disposition
[57] Mr. Zito was terminated shortly after the above facts became known to Enbridge. The details of how and why Mr. Zito was terminated are not before this court. As a result, Mr. Zito’s termination from Enbridge has no bearing on the determination of this motion.
[58] The fact that the criminal charges against Mr. Zito were stayed does not assist on the determination of this motion.
[59] Trade Capital raises issues regarding Mr. Zito’s credibility given, what is admitted, an incomplete affidavit by Mr. Zito of his assets produced pursuant to the Mareva Order. Mr. Zito did not disclose a real estate investment with his daughter. I am not persuaded that, on this motion and in light of the above, this particular failed disclosure is material to the disposition of the motion.
CONCLUSION
[60] The issues raised in this proceeding are genuine issues, unresolved and unresolvable on a motion which issues go to the core of the claims and defences raised. These issues require a trial.
[61] The summary judgment motion is dismissed.
[62] Given that production has not yet been completed, retaining jurisdiction over this matter by conducting a trial of an issue or other summary trial, is not appropriate or feasible.
COSTS
[63] Any party seeking costs shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 5 pages, with attached Costs Outline and any authorities.
[64] Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 5 pages with any authorities relied on attached.
[65] There shall be no reply submissions without leave.
Ricchetti, J.
Date: December 4, 2017
CITATION: Trade Capital v. Cook, 2017 ONSC 7157
COURT FILE NO.: CV-15-2110-00 DATE: 20171204
SUPERIOR COURT OF JUSTICE
ONTARIO
BETWEEN:
TRADE CAPITAL FINANCE CORP.
(Plaintiff/Responding Party)
-and-
PETER COOK also known as PETER WILLIAM COOK, MARC D’AOUST also known as JEAN MARC D’AOUST, THOMAS BARKER also known as THOMAS RICHARD BARKER (personally and carrying on business as LC EXCHANGE, GLOBAL MEDICAL and GREENLINK CANADA GROUP), ROCKY RACCA, BRUNO DIDIOMEDE also known as BRUNO DIAIOMEDE, ALAN KEERY also known as ALAN JOHN KEERY, CHRIS BENNETT JR. also known as CHRIS BENNETT also known as CHRISTOPHER BENNETT (personally and carrying on business as CJR CONSULTING), TODD CADENHEAD, DA YA W ANSA WICKRAMASINGHE, BONNY LOKUGE also known as DON BONNY LOKUGE, VIRTUCALL INC., VIRTUCALL INTERNATIONAL LLC, DEBT RESOLVE-MORTGAGE FUNDING SOLUTIONS INC. carrying on business as DEBTRESOLVE INC., THE CASH HOUSE INC., 1160376 ONTARIO LIMITED operating as THE CASH HOUSE, 2242116 ONTARIO INC. carrying on business as SUPERIOR MEDICAL SERVICES INC. and SUPERIOR MEDICAL SERVICES, CARLO DE MARIA also known as CARLO VINCE DE MARIA also known as CARLO VINCENT DE MARIA also known as CARLO VINCENZO DE MARIA, MATTEO PENNACCHIO, FRANK ZITO also known as FRANCESCO ZITO, SIMONE SLADKOWSKI, JOBEC TRADE FINANCE INC., 1461350 ONTARIO INC., 2299430 ONTARIO INC., WF CANADA LTD., JOBEC INVESTMENTS RT LTD., GREEN LINK CANADA INC., 2339989 ONTARIO INC., 2252364 ONTARIO INC., 2224754 ONTARIO LTD., 6980023 CANADA INC. operating as LIVING BENEFITS and MILLWALK ENTERPRISES INC.
(Frank Zito/Moving Party)
BEFORE: Ricchetti, J.
COUNSEL: P. Viater, for Frank Zito, the Moving Party P. Carey, for the Plaintiff (Trade Capital)
ENDORSEMENT
RICCHETTI, J.
Date of Release: December 4, 2017