COURT FILE NO.: CV-18-134315
DATE: 20181002
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J&F Seafood Corp.
Plaintiff
– and –
Tridente 2017, Konstantin Tolstov and Ilya Tian
Defendants
Jonathan Frustaglio, for the Plaintiff
Justin T. Chan, for the Defendants
HEARD: September 28, 2018
REASONS FOR DECISION
MULLINS J.:
[1] The plaintiff moves for summary judgment in the sum of $81,385.99 alleged to be owing as a result of the delivery by the plaintiff to the defendant of fish. There are two primary issues: what is the sum owing between the parties and, is the sum owed by any of the defendants “Tridente 2017”, Konstantin Tolstov or Ilya Tian, or, is any sum owed by Tridente Group Ltd.?
[2] The parties intended to make commercial arrangements of benefit to all. The President of the plaintiff corporation deposes that he dealt primarily with the defendant, Ilya Tian, with respect to the purchase orders for salmon styled in the name of Tridente 2017. The evidence of Joseph Todero, Vice President of the plaintiff, deposes that invoices #1521 and #1621 are outstanding in respect of which the sum of $81,385.99 remains owing. Mr. Tian had, according to the evidence of Frank Todero, represented himself as the point of contact and frontman of Tridente 2017 and Tridente Group Ltd. Mr. Tian’s previous corporation had become bankrupt, and wary of not being paid, Mr. Todero says, he refused to contract with another corporate entity.
[3] The plaintiff contends that the defendant Tridente 2017 is an unincorporated entity. Mr. Tian and Mr. Tolstov were, submits the plaintiff, carrying on business together with a view to making profit, wherefore they have joint and severed liability for the debt claimed, as partners under the Partnership Act. The defendants, however, claim that Tridente 2017 was merely a misnomer of Tridente Group Ltd. While the defendants concede there is $22,095.38 owing, they contend this is owed to the plaintiff by Tridente Group Ltd.
Summary Judgment
[4] On hearing a motion for summary judgment under rule 20.04, the court shall grant judgment if satisfied there is no genuine issue requiring a trial. The parties are obliged to put forward their best case in the evidence they present. The court is now entitled, indeed obliged, to give the evidence a good hard shake in accordance with rule 20.04(2.1).
[5] The evidence is mixed as to whether the contractual obligations to pay for salmon delivered by the plaintiff falls to the defendants as named, or to Tridente Group Ltd. There are purchase orders in the name of Tridente 2017 and Tridente Group Ltd., albeit for two types of fish. The defendants claim that the accounting of what is owed and from whom has to take into account contractual relations under two agreements, one being the Ocean Charm Salmon Promotional Activities Agreement and the other the Exclusivity Agreement.
[6] The plaintiff cites, accurately, the legislation that requires corporate entities to properly identify themselves as corporations. I find on all the evidence nonetheless, that the defendant has met the evidentiary burden to show there are genuine issues requiring a trial. There is insufficient organization of an accounting of the purchase orders, invoices and payments from either party to determine what quantum may be owing, for which product or service under what agreements between what parties.
[7] Even if the individually named defendants are liable as partners of an unincorporated entity, there is also insufficient evidence on this motion to establish that each was a partner, rather than say, an employee.
[8] To the extent there has been an admission, judgment should be granted to the plaintiff as against Tridente Group Ltd. for the sum of $22,095.38 plus pre-judgment interest, without prejudice to the plaintiff to pursue all amounts claimed against all parties named as defendants.
[9] The parties should exchange spreadsheets outlining each relevant purchase order, the invoices as they relate to any purchase order and allocating any payments made as between the plaintiff and Tridente 2017, and or, Messrs Tolstov and Tian, and/or Tridente Group Ltd. It might be helpful for there to be reference to the type of fish to which each refers.
[10] The motion is granted in part in accordance with paragraph 8.
[11] The parties may make submissions as to costs, limited to two pages, within 15 days for the plaintiff and 20 days for the defendants.
Justice A.M. Mullins
Released: October 2, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J&F Seafood Corp.
Plaintiff
– and –
Tridente 2017, Konstantin Tolstov and Ilya Tian
Defendants
REASONS FOR DECISION
Justice A.M. Mullins
Released: October 2, 2018