ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV–15–2297-00 DATE: 2019 01 08
B E T W E E N:
SABAH ZAIB Plaintiff (responding party)
- and -
PRITPAL KAUR SANDHU, MALIK FINANCIAL CONSULTANTS, MAQSOOD MALIK aka MAC MALIK, EASY ACCESS HOME COMFORT, NOSHIN ASGARI, OMEGA CONSTRUCTION & LANDSCAPING INC., and SAHER HANNA aka CAMARAN HANNA Defendants (moving party)
COUNSEL: V. Sharma, for the Plaintiff Amandeep Sidhu, for the Defendant Sandhu
HEARD: December 10, 2018
Justice Thomas A. Bielby
RULING ON MOTION FOR SUMMARY JUDGMENT
[1] Pursuant to Rule 20 of the Rules of Civil Procedure, the defendant, Pritpal Sandhu (Sandhu) has brought a summary judgement motion seeking to have the action dismissed against her.
[2] Rule 20.04 (2)(a) reads,
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.
[3] Counsel for Sandhu submits that, on the evidence before the court, there is no genuine issue requiring a trial.
[4] The motion is opposed by the plaintiff Sabah Zaib (Zaib).
FACTS
[5] Sandhu, in March 2013, decided to renovate the basement floor of her home. She commenced a search for suitable financing.
[6] Sandhu alleges that in April, 2013, she was introduced to Zaib, by Zaib’s husband. Sandhu was told that Zaib was in the process of obtaining financing of her own and, given Zaib’s strong credit rating, perhaps Zaib could assist Sandhu.
[7] The parties verbally agreed that Zaib would obtain financing, a portion of which would be allocated to Sandhu to finance the renovations.
[8] Zaib and Sandhu opened a joint bank account at the CIBC and on May 9, 2013, a bank draft for $20,480.00, made payable to both Zaib and Sandhu, was deposited into the account. On June 7, 2013, a further bank draft for $28,334.00, made payable to both parties, was deposited.
[9] Sandhu agreed to provide Zaib with a series of monthly post-dated cheques, each in the amount of $808.00.
[10] Sandhu was not required to provide security for any of the monies utilized by her. In her affidavit Sandhu deposed that from the joint account she only withdrew the sum of $27,374.02. However Zaib alleges that Sandhu withdrew almost all of the monies.
[11] Notwithstanding the amounts deposited to the joint accounts, I accept that the loan monies resulted from two loans with two different creditors, both in Zaib’s name. One of the loans was for $31,427.00 with a monthly payment of $396.25, and the other was for $32,554.00 and had a monthly payment of $411.55. The total for these two payments is $807.80, an amount that is almost equal to the monthly amount ($808.00) Sandhu agreed to pay.
[12] In April, 2014, a dispute arose between Sandhu and Zaib. Sandhu alleges the dispute arose out of Zaib’s failure to pay the loans as required. Sandhu argued that she was only responsible for the amount of funds she withdrew and was not responsible for repaying the funds utilized by Zaib.
[13] Sandhu deposed that in December, 2014, Zaib’s husband Hashmi, approached her in an attempt to resolve the dispute.
[14] It is Sandhu’s evidence that on March 31, 2015, she and Zaib entered into an agreement entitled, “Agreement and Acknowledgment” (the “Agreement”) (motion record, tab 2A). Therein it was agreed that Sandhu would pay to the Zaib the sum of $28,374.02 in full settlement of the dispute arising from the loans. By the terms of the Agreement and by accepting the funds, Zaib released Sandhu from any further claims in regards to the borrowed monies.
[15] Sandhu obtained a bank draft for the settlement amount, payable to the Zaib, which was delivered to and negotiated by Zaib.
[16] The Agreement was allegedly witnessed by three individuals, two of which are the parties’ spouses. The third was an individual named Harrinder.
[17] Forty-five days later Zaib commenced this action for the balance of the two loans.
[18] Counsel for Sandhu submits that the Agreement is binding on both her and Zaib and is a complete answer and defence to Zaib’s claim. Whatever occurred prior to the execution of the Agreement is irrelevant.
[19] Accordingly, Sandhu submits there is no genuine issue requiring a trial.
[20] Zaib deposes that she did not sign the Agreement. Nor did her husband. Either their signatures were forged or the signing page is from some other document to which was added the first page.
ADMISSIBILITY OF THE HANDWRITING EXPERT’S REPORT
[21] In response, Sandhu retained the services of a handwriting expert, Mr. L. G. Pitney. His expert report was attached as an exhibit to the affidavit of Nadia Sewall, a legal assistant in the office of Sandhu’s counsel, and sworn on May 26, 2016. Mr. Pitney concluded that it was highly probable that Zaib signed the Agreement.
[22] It is Sandhu’s submission that the report is the best evidence before the court and establishes, on a balance of probabilities, that Zaib executed the Agreement and therefore has no cause of action against Sandhu.
[23] Accordingly, it is submitted, there is no genuine issue requiring a trial. It is submitted that the action ought to be dismissed as against Sandhu.
[24] During the submissions of counsel for Sandhu, I questioned the manner by which the Pitney report was placed into evidence. Was the report, as an exhibit attached to the affidavit of an administrative assistant, admissible evidence on a motion for summary judgement?
[25] In response counsel for Sandhu provided me with a copy of the decision of L.A. Pattillo J. in Doe v. O’Connor, 2010 ONSC 1830, and argued that the case supports the admissibility of the handwriting analysis report, in the manner by which it was presented. Counsel for Zaib provided no authority on this point.
[26] In the Doe case, a letter from a clinical social worker who prepared an assessment of the plaintiff, was attached to the plaintiff’s affidavit. The defendants in Doe opposed the admissibility of the letter arguing it was hearsay and denied the defendants the right of cross-examining the author of the letter.
[27] At paragraph’s 15 and 16, Patillo J. wrote,
“Evidence on a motion can be admitted on the basis of information and belief: Rule 39.01(4). I have been provided with no authority which establishes that an expert report cannot be tendered by information and belief on a motion other than a summary judgment motion where the party seeking to tender the expert evidence has an obligation to put their best case forward and not shield their expert from cross-examination: Suwary v. Women’s College Hospital, 2008 ONSC 883.
Although I some concerns with the manner in which Dr. Durish’s assessment has been placed before the court, given the importance of the issue, I do think it is admissible. In my view, the concerns raised by the defendant in respect of its admission go to weight rather than exclusion.”
[28] To be clear, the motion before Patillo J. was not a summary judgment motion. The matter before me is.
[29] The Suwary decision, cited by Patillo J. is a decision of Strathy J. in regards to a motion for summary judgement. From paragraph 26 in the Suwary decision I quote,
“It is well established that a party intending to rely on the opinion of an expert on a summary judgment motion must put the evidence forward in a manner that will permit cross-examination of the expert.” Strathy J. relied on the decision in Hiebert v. Lennox Canada Inc., 2007 ONSC 3079.
[30] At paragraph 30, Strathy J. went on to say,
“The reason for the rule is obvious: a party relying on expert evidence in a motion for summary judgment does not “play trump” by shielding its expert from cross-examination through the use of an “information and belief” affidavit of someone completely unqualified to testify on the issue.”
[31] The decision in the Hiebert case was written by G. Valin J. who heard a summary judgement motion brought by the defendant. From paragraph 17, I quote,
“If a party intends to rely on the substance of an expert’s report on a summary judgment motion, the evidence must be put before the court in a manner that will permit cross-examination of the maker of the report. This can be done in one of two ways. The expert can place the substance of his/her opinion in an affidavit sworn by him/her. Alternatively, the expert can swear an affidavit to which his/her report is attached as an exhibit and swear to the truth of the contents of the report.”
[32] The same issue was before me on a summary judgement motion in Delicata Estate (Trustee of) v. Credit Valley Hospital, 2016 ONSC 2631. Therein an expert’s report was attached to a clerk’s affidavit and I ruled the report was inadmissible.
[33] Sanzone v. Schechter, 2016 ONCA 566 was an appeal of the motion judge’s decision to dismiss the appellant’s action. The court ruled that the motion judge erred in granting summary judgement because the moving party’s dentists failed to discharge their obligation to put their best evidentiary foot forward on their motion.
[34] However, the court did agree with the motion judge’s ruling that a doctor’s letter attached to an affidavit of the appellant/plaintiff was inadmissible. At paragraph 16, Brown J.A. wrote,
“As a general rule, when a party seeks to adduce expert evidence on a summary judgment motion, the evidence of the expert must comply with rule 53.03, unless the opinion evidence is based on the witness’ observation of or participation in the events in issue, as explained in Westerhof v. Gee Estate, 2015 ONCA 206, 310 O.A.C. 335, at paras. 60-62. A party can file either an affidavit from the expert containing is or her opinion or an affidavit from the expert containing his or her opinion or an affidavit from the expert with the report attached: Danos v. BMW Group Financial Services Canada, a division of BMW Canada Inc., 2014 ONSC 2060, [2014] O.J. No. 1802, at para. 29, aff’d 2014 ONCA 887.”
[35] Returning now to the matter before me, the Doe case can be distinguished as the matter before the judge was not a summary judgment motion, a distinction even noted by the judge in Doe.
[36] The Pitney report, as an exhibit to assistant’s affidavit, is inadmissible on the summary judgement motion before me. Such a filing protects Mr. Pitney from being cross-examined. By attempting to file the report as an exhibit to someone else’s affidavit the moving party, Sandhu, has failed to put her best foot forward.
[37] Although I have ruled the Pitney report to be inadmissible and notwithstanding Sandhu’s reliance on the report as the basis of this motion, I must still determine if there is a genuine issue requiring a trial.
GENUINE ISSUE FOR TRIAL
[38] Rule 20.04 (2.1) and (2.2) read as follows:
(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 trial;
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[39] The leading authority on the issue of summary judgment motions is Hryniak v. Mauldin, 2012 SCC 7, [2012] S.C.J. No. 7, and from paragraph 49 I quote,
“There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (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.”
[40] From paragraph 66, I quote,
“On a motion for summary judgement under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trail can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interests of justice. Their use will not be against the interest of justice if they 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.”
[41] I am of the opinion that without the Pitney report there is a genuine issue for trial, especially in regards to the credibility of Zaib and Sandhu. Further, the need for a trial cannot be avoided by using the powers under Rules 20.04(2.1) and (2.2).
[42] The initial agreement between the parties was a verbal one. Nothing was reduced to writing.
[43] The positions taken by Zaib and Sandhu are diametrically opposed. Sandhu deposed and testified that Zaib and her husband, as a witness, signed the agreement. Zaib deposed that she and her husband did not sign the agreement.
[44] Zaib deposed that Sandhu required assistance to arrange financing because her and her husband’s credit scores were so low. Accordingly, the Plaintiff, using her good credit rating, borrowed the monies but at all times it was agreed Sandhu would be responsible for the loans in their entirety and would have them paid off by February, 2014. The loans were to be secured against Sandhu’s home.
[45] Sandhu, until the loans were paid in full, was to make the monthly payments due under both loans and which were essentially the amount Sandhu set out in her post-dated cheques ($808.00).
[46] The financing was to be arranged through Golden Financial Services & Mortgage Ltd., a company Sandhu deposed for which she did volunteer work. In the Golden loan application both Sandhu and the Plaintiff are noted as applicants (applicant and joint applicant).
[47] Financeit was the creditor in one of the loans and the loan was for $32,544.50. The other loan was through Crelogix Credit Group Inc., and was for $31,427.91. The documentation for both loans show Zaib as the borrower/debtor and the one responsible for the payments to both creditors.
[48] There are numerous defendants in this action, some of which have been noted in default and others who have filed Statements of Defence. Zaib alleges that she was pulled into a “scheme”. The loans were for more than the monies deposited into the parties’ joint account. It is alleged the loan monies were initially paid to two contractors (co-defendants), neither of which did any work for either party, and who skimmed monies off the top. With respect to the remaining monies, two bank drafts were prepared, one from the CIBC and the other from the Royal Bank, and both payable to Zaib and Sandhu and which were deposited into the joint account as referenced earlier.
[49] It is alleged that Sandhu was connected to the scheme and that Zaib was a victim. She became responsible for debt that was not hers.
[50] Further, there are inconsistencies in Sandhu’s evidence.
[51] The original Golden application suggests Sandhu disclosed an income of $59,000.00. In other evidence she deposed she was on a C.P.P. disability pension of $1,030.00 per month.
[52] The only transcript used on this motion was from Sandhu’s examination for discovery, held on September 2, 2016.
[53] Therein she testified to the following, which it could be said challenge her credibility. The following are a few examples:
(a) The total cost of the renovation of her basement was between $50,000.00 and $60,000.00 and that she paid cash for the work (pg. 5, L. 18). (b) She knew that Crelogix and Financeit financed the loans but was not sure how many loans there were (pg. 11, l. 1). (c) She could not remember if all the monies borrowed were deposited into the joint account (pg. 14,.14). (d) She agreed that her affidavit was incorrect in which she deposed that only $27,374.02 was deposited into the joint account. She then stated she could not remember how much had been deposited (p. 24, l. 1). (e) In her affidavit Sandhu deposed that she agreed to the post-dated cheques prior to withdrawing any funds. When questioned she said she had agreed to the cheques after she had withdrawn monies. She then said again that she really did not remember (pg. 32, l. 7). (f) She said she attended with Zaib to deposit only one of the bank drafts. She had no idea the drafts were made out to both her and the Plaintiff. (g) Sandhu agreed that the monthly payments on both loans totalled the monthly payment she agreed to pay ($808.00). (h) She agreed that all the monies that were deposited were for her use (pg. 49 l. 14). (i) Sandhu said that two men completed her renovations and paid one $35,000.00 and the other, $25,000.00. She agreed that all the money in the account was taken by her (pg. 65 l. 21, pg. 66, l. 9). (j) At tab l of the responding motion record is a handwritten agreement in which it is stated that Sandhu owed $60,000.00 to Zaib. It is dated April 2, 2014. Sandhu denies she saw or signed such an agreement.
[54] On a summary judgment both sides are to put their best foot forward. Without having to consider whether Zaib put her best foot forward, in my opinion the moving party, Sandhu, has not done so. The conflicting affidavit evidence and the noted potential contradictions and/or inconsistencies in the discovery evidence of Sandhu, clearly put credibility in issue and credibility cannot be determined on the summary judgment motion material before me.
[55] The court will have to watch and listen to the trial testimony of both Zaib and Sandhu and make findings of credibility.
[56] The motion for summary judgment is dismissed.
[57] In regards to costs, if the parties cannot agree to costs, I will accept written submissions of no more than three pages in length, together with a bill of costs. Zaib, the successful party, shall file her submissions within 14 days of the release of this ruling. Sandhu shall respond 10 days thereafter.
Bielby J. Released: January 8, 2019