Court File and Parties
COURT FILE NO.: CV-15-531384
DATE: 2018/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AMELIN RESOURCES, INC.
Plaintiff
– and –
VICTORY ENERGY OPERATIONS, L.L.C., TAKADO INDUSTRIAL, A.G., and OOO ГРУППА "НЕФТЕХИММАШ" (C.O.B. AS NEFTEHIMMASH)
Defendants
Counsel:
Matthew Diskin for the Plaintiff
J. Thomas Curry and Christopher Yung for the Defendant Victory Energy Operations, L.L.C.
HEARD: November 19-20, 2018.
REASONS FOR DECISION
PERELL, J.
[1] In 2015, Amelin Resources, Inc. (“Amelin Canada”) sued Victory Energy Operations L.L.C. (“Victory Energy”) for breach of contract and conspiracy.
[2] Amelin Canada joined OOO ГРУППА "НЕФТЕХИММАШ" (c.o.b. as Neftehimmash), a Russian corporation, and Takado Industrial A.G., a swiss corporation, as co-defendants to the conspiracy claim.
[3] In June 2017, Amelin Canada discontinued the action as against Takado in an undisclosed and confidential settlement. The statement of claim was never served on Neftehimmash and Amelin filed a notice of discontinuance as against Neftehimmash on June 30, 2017.
[4] There have been no examinations for discovery, but Amelin Canada now brings a summary judgment motion as against Victory Energy. It seeks a judgment for $25,110,817.11 USD and a reference to assess remaining damages and punitive damages.
[5] For the reasons that follow, I dismiss the summary judgment motion.
[6] My explanation shall be brief because notwithstanding Amelin’s arguments that its conspiracy claim can be distilled to a simple straightforward $25 million breach of contract action with more damages to be assessed, the case at bar is not remotely an appropriate case for a summary judgment.
[7] A recounting by me of the highly contested facts that underlie Amelin’s action would interfere with the trial judge’s assessment of this action and would involve, among other things, determining what pre-contract representations were made, whether there was collusion between Russian corporation(s) with an American corporation, whether there were secret meetings, whether there as a conspiracy to harm Amelim or to misappropriate its business in Russia, and whether there was a conspiracy to interfere with Amelin’s cash flow to render it vulnerable to economic duress.
[8] A summary recounting of the facts would also involve determining how several contracts should be interpreted when they were created in a convoluted factual nexus, whether and which of the contracts and work orders were valid contracts, and whether any contracts or purchase order were breached, and, if so, the extent of Amelin’s damages, if any. There are missing witnesses, hearsay problems, and credibility and reliability issues associated with the various genuine issues.
[9] Victory Energy concedes nothing, and it has numerous defences that also have genuine issues requiring a trial, and once again, there are missing witnesses, hearsay problems, and credibility and reliability issues associated with the various genuine issues..
[10] A breach of contract claim is undoubtedly simpler that a conspiracy claim, but there is a surfeit of genuine issues about the contract claim that is imbedded in the conspiracy claim and a surfeit of genuine issues about the defence to the contract claim. There is also a super-surfeit of genuine issues about the conspiracy claim and the defences to it.
[11] These surfeits of genuine issues require a trial, and, however, robust one might apply the test for summary judgments, it would not be in the interests of justice to decide this $25 million action summarily.
[12] I, therefore, dismiss the summary judgment motion.
[13] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Victory Energy’s submissions within twenty days of the release of these Reasons for Decision followed by Amelin’s submissions within a further twenty days.
Perell, J.
Released: November 27, 2018
COURT FILE NO.: CV-15-531384
DATE: 2018/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AMELIN RESOURCES, INC.
Plaintiff
– and –
VICTORY ENERGY OPERATIONS, L.L.C., TAKADO INDUSTRIAL, A.G., and OOO ГРУППА "НЕФТЕХИММАШ" (C.O.B AS NEFTEHIMMASH)
Defendants
REASONS FOR DECISION
PERELL J.
Released: November 27, 2018