Court File and Parties
COURT FILE NO.: CV-19-80426 DATE: 20210208 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANTRANIK KECHICHIAN, Plaintiff AND: KHALED EL-SHEIKH, 10366668 CANADA INC., MADELEINE BONHOMME, 10123706 CANADA INC., SAMEH MANSOUR, 10313033 CANADA INC., DANNY DREIGE, ROSALIE MALO, 10496871 CANADA INC., 10402621 CANADA INC., KAUFMAN LLP, ESSILOR INTERNATIONAL SA and 9109682 CANADA INC., Defendants
BEFORE: Mew J.
COUNSEL: Antranik Kechichian, unrepresented Gary G. Boyd, for the defendant (moving party), Kaufman LLP Chad Pilkington, for the defendant, Essilor International SA
HEARD: 28 October 2020, in Ottawa (by Zoom)
Endorsement
[1]
Introduction
The moving party, Kaufman LLP, a Montreal law firm, seeks summary judgment dismissing the plaintiff’s claim for damages arising out of the firm’s alleged professional negligence.
[2]
Background
The law firm had previously represented the plaintiff for approximately 15 years. Most recently, it represented his interests, and those of certain companies controlled by him, in relation to the sale of a business known as Laurier Optical, which the plaintiff and members of his family previously owned, to Gestion Éric Savard and affiliated companies. An Asset Purchase Agreement was entered into in 2016. However, by 2017, the Savard companies had applied for creditor protection pursuant to the Companies’ Creditors Arrangement Act, R.S.C., 1985, c. C-36. There is ongoing litigation in both Québec and Ontario between the plaintiff and, inter alia, Kaufman LLP in relation to the legal services provided by Kaufman to the plaintiff and certain companies controlled by him, in relation to the Laurier Optical sale to the Savard group and the subsequent demise of the business.
3The present action relates to the plaintiff’s attempt to purchase sixteen percent of the shares of 10313033 Canada Inc. (“033”). That company had, in September 2017, acquired the Ontario assets of the former Laurier Optical business.
4Sixteen percent of 033 was owned by another numbered company, 10366668 Canada Inc. (“668”). 668 was, in turn, wholly owned by the defendant, Khaled El-Sheikh.
5The plaintiff alleges that on 17 December 2017, he met with Mr. El-Sheikh in Ottawa and negotiated the sale, by Mr. El-Sheikh to him, of the shares in 668 for consideration of $200,000. The plaintiff provided Mr. El-Sheikh with a deposit of $50,000.
6The statement of claim makes reference to a “binding agreement for the purchase of the sixteen percent shares from Elsheikh” produced by Kaufman.
7The share purchase transaction was never completed. Mr. El-Sheikh, instead, sold his shares to other parties namely, the defendants Sameh Mansour, Madeleine Bonhomme, Danny Dreige, Rosalie Malo and companies controlled by them.
8The plaintiff alleges that Kaufman LLP failed to secure a proper binding agreement for the plaintiff to protect his interests.
[9]
The Motion
Kaufman asserts that the plaintiff does not have a viable claim and, as such, there is no triable issue, such that summary judgment should be granted in its favour at this stage.
10Kaufman’s statement of defence in this action is largely unresponsive to the allegations that have been made in this action. Rather, it repeats the same position that it has pleaded in a number of other actions brought by Mr. Kechichian which relate to the sale Laurier Optical business to the Savard group and its aftermath.
11In its notice of motion for summary judgment, Kaufman asserts the following grounds in support of its request for summary judgment:
a. Expiry of the limitation period; b. The plaintiff has not suffered any damages; c. The claim is duplicative of other claims made by the plaintiff in actions in both Ontario and Quebec; and d. The action is an impermissible attack on orders made by the Québec Superior Court in the application by the Savard group under the Companies’ Creditors Arrangement Act (“CCAA”) and, subsequently, under the Bankruptcy and Insolvency Act.
[12]
The Evidence
The evidence relied upon by Kaufman in support of its summary judgment motion comes in the form of an affidavit from a law clerk with the Ottawa law firm representing it in this litigation, which exhibits various pleadings and orders arising from the Québec insolvency proceedings as well as the Asset Purchase Agreement dated 23 September 2016. The record also includes the pleadings in the present action, including the defences filed by a number of the other defendants.
13Although the statement of claim recites some of the plaintiff’s grievances arising from the sale of the Laurier Optical business, as against Kaufman LLP, the focus is solely on the alleged failure of Kaufman LLP to secure a proper binding agreement for the plaintiff to protect his interests.
14In that respect, the moving party provides nothing, by way of evidence, that addresses the plaintiff’s allegations.
15What the moving party does, however, through its factum and in oral argument, is point to what it portrays as a lack of evidence tendered by the plaintiff to support his claim. In particular, Kaufman asserts that:
a. The plaintiff has claimed that a Kaufman lawyer drafted the agreement but has not produced an account to show that Kaufman did the work; and b. The only attempt made by the plaintiff to enforce the agreement was a single letter from a lawyer representing the plaintiff requiring Mr. El-Sheikh and his company to comply with the agreement. No further action was taken by the plaintiff to enforce it.
16According to Kaufman, on cross-examination, the plaintiff’s “only justification and support for his claim” for damages was that if he had acquired sixteen percent of the shares of 033, he would have had access to information that would assist him in his claims in relation to the Savard group CCAA and bankruptcy proceedings.
17On cross-examination, Mr. Kechichian testified that the agreement for the sale of shares of 668 by Mr. El-Sheikh to Mr. Kechichian was drafted by Laurent Debrun, who was, at the time, a lawyer at the Kaufman firm. Mr. Kechichian testified that Mr. Debrun had dealt directly with Mr. El-Sheikh.
18Mr. Kechichian’s evidence about the role played by Mr. Debrun is uncontradicted: there is no affidavit from Mr. Debrun.
[19]
Analysis
The factum of Kaufman LLP recites the now familiar admonition that on a motion for summary judgment, the parties are expected to put forward the best evidence available. Kaufman’s factum suggests that this is only the responsibility of a responding party. I would suggest, however, that the moving party has a similar responsibility.
20Kaufman’s argument is that the plaintiff’s claim that the agreement is unenforceable cannot succeed because the plaintiff has failed to demonstrate that the agreement was, in fact, unenforceable. That argument ignores the fact that in the present proceeding, Mr. Kechichian seeks to enforce the very agreement which, he says, Mr. El-Sheikh and 668 have breached. Far from having made only one attempt, in the form of a lawyer’s letter, to enforce the contract, the plaintiff is, in fact, actively attempting to enforce the contract through this litigation. If he is unsuccessful, he will presumably be looking to Kaufman LLP for indemnification.
21Although a limitation defence was pleaded by Kaufman, there are no particulars given. It is trite law that a defendant must plead the material facts upon which a limitation defence is based. This is particularly so where the basis for the limitation defence is not self-evident from the other pleaded material facts.
22As to the assertion by Kaufman that Mr. Kechichian does not have a provable claim in damages, that remains to be seen. Even if there is no quantifiable value to the loss of an opportunity to acquire sixteen percent of the shares in 033 and, by reason of that, his claim for damages is only nominal, it could nevertheless be a valid claim.
23In short, the moving party has not met its burden of establishing that there is no genuine issue requiring a trial with respect to the plaintiff’s claim against it. I would therefore dismiss the motion for summary judgment.
[24]
Costs
I am presumptively of the view that the plaintiff is entitled to his costs of the motion on a partial indemnity scale.
25As this is one of six summary judgment motions involving the plaintiff, I will give direction separately with respect to the delivery of costs summaries and submissions on the issue of costs in both this and the other summary judgment motions which I heard concurrently with it.
Mew J.
Date: 08 February 2021