Court File and Parties

COURT FILE NO.: CV-19-82023

DATE: 20210519

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE BANK OF NOVA SCOTIA, Plaintiff/Moving Party

AND:

HALA JARADA and ANTRANIK KECHICHIAN, also known as TONY KECHICHIAN, Defendants

BEFORE: Mew J.

COUNSEL: Ian Klaiman, for the Plaintiff

Keith A. MacLaren and Bryce Dillon, for the Defendant, Hala Jarada

Antranik Kechichian, unrepresented

HEARD: 26 January 2021, at Ottawa (by Zoom)

ENDORSEMENT

[1] The plaintiff bank (the “Bank”) brings this motion for summary judgment to enforce personal guarantees given by the defendants in respect of the obligations of 8283648 Canada Inc. (“828”) and its predecessors. The defendant Hala Jarada crossclaims against her co-defendant Antranik Kechichian for indemnity in respect of the claim made against her by the Bank.

[2] This endorsement addresses the claims against Antranik Kechichian. For the reasons contained in my decision on another summary judgment motion, heard concurrently with this one, I would dismiss the motion for summary judgment against the defendant Hala Jarada: reasons for decision in Court File No. CV-19-82025 (Ottawa), reported at 2021 ONSC 3620.

[3] The bank entered into a term loan agreement with 828 on 6 November 2012, whereby it provided the borrower with a loan of $300,000. The defendants executed and delivered unlimited joint and several personal guarantees in respect of 828’s obligations to the bank.

[4] Concurrently, a credit line agreement was entered into between the bank and 828, providing a credit line facility of $50,000. Guarantees were also given in respect of the credit line.

[5] The term loan and the credit line have gone into default. Appropriate notices of intention to enforce security have been delivered to the guarantors.

[6] As of 11 June 2020, being the original return date of this motion, $158,368.52 was due and owing on the term loan guarantee and $57,751.78 on the credit line guarantee, inclusive of principal and interest. The plaintiff has provided a draft judgment which does not update these figures or delineate between the principal and interest components of these amounts.

[7] Mr. Kechichian does not deny that the term loan and the credit line have gone into default. With the caveat that the exact amounts of principal and interest owing need to be finalised, Mr. Kechichian does not, in principle, challenge the amounts claimed. As in a number of other actions in which Mr. Kechichian or his companies are being pursued by creditors, the essence of his defence is that the Bank failed to mitigate its damages by properly protecting or pursuing its security and, having failed to do so, should not be entitled to enforce the loans or the guarantees made in respect of those loans.

[8] For the same reasons that I have given in 1951584 Ontario Inc. v. Kechichian, Court File No. CV-19-81579 (Ottawa), reported at 2021 ONSC 3617, those defences fail. Furthermore, the record in this case indicates that the Bank did, initially successfully, apply to the Quebec Superior Court, in connection with proceedings under the Companies’ Creditors Arrangement Act for the Savard Group, to have interest accrued to the bank since the original CCAA order treated as a post filing debt (and hence payable out of holdback funds), only to have that small victory set aside on appeal. Accordingly, even if it were to be the case that the Bank owed Mr. Kechichian a duty to preserve and protect its security, the evidence in this case suggests that the Bank did, at least to some extent, attempt to do so.

[9] Because there are no triable issues on the defences raised by Mr. Kechichian, the Bank is entitled to judgment for the principal amounts owing under the term loan agreement and the credit line, together with contractual interest thereon from the date of default to the date of judgment. If the parties are unable to agree on the calculation of damages, I may be spoken to.

[10] Post judgment interest shall be at the rate prescribed by the Courts of Justice Act, rather than the contractual rate.

[11] The Bank has provided its costs outline. This relates to its claim for summary judgment against both Dr. Jarada and Mr. Kechichian.

[12] I would invite the Bank to provide written costs submissions, not to exceed four pages in length, in support of its claim for costs against Mr. Kechichian, which I am of the view that the Bank is presumptively entitled to. In its factum, the Bank seeks costs on a substantial indemnity scale. The Bank’s submissions should address both the scale of costs and the quantum, having regard to the Bank’s divided success, as between Mr. Kechichian, on the one hand, and Dr. Jarada, on the other.

[13] As indicated in my reasons for decision in Court File No. CV-19-82025, I am presumptively of the view that Dr. Jarada should have her costs of the summary judgment motion against the Bank on a partial indemnity scale in relation to both that motion and this one.

[14] Also, as indicated in my reasons for decision in Court File No. CV-19-82025, Dr. Jarada is entitled to summary judgment on her crossclaim against Mr. Kechichian. I have dealt with the issue of her costs, vis-à-vis, Mr. Kechichian, on her claims for indemnity in both actions, in those reasons for decision.

[15] The Bank’s costs submissions should be delivered within 21 days of receipt of these reasons. Mr. Kechichian may provide a responding submission, not to exceed four pages, by no later than 14 days after the bank’s submissions are delivered.

[16] All submissions can be sent by email to my judicial assistant.

Mew J.

Date: 19 May 2021