COURT FILE NO.: CV-22-00088557-0000
DATE: 2022-09-14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 10490423 Canada Inc. v. 1951584 Ontario Inc., Antranik Kechichian and Optical Vision Canada Ltd.
BEFORE: Associate Justice A. Kaufman
COUNSEL: Antranik Kechichian, representing himself
HEARD: In writing
E N D O R S E M E N T
[1] On February 17, 2021, Smith J. declared Antranik Kechichian to be a vexatious litigant and prohibited him from instituting any proceedings except by leave of a judge obtained under section 140 of the Courts of Justice Act.[^1] Pursuant to paragraph 73(e) of Smith J.’s decision, Mr. Kechichian was prohibited from commencing any application for leave to bring a proceeding until he has obtained an order from an Associate Judge authorizing him to bring such an application (a Chavali Order).[^2]
[2] Mr. Kechichian brings this motion for leave to bring an application under s. 140 of the Courts of Justice Act. If leave is granted, Mr. Kechichian proposes to bring a third-party claim against Kaufman LLP and 1951584 Ontario Inc.
Description of the current proceeding
[3] This action was commenced by 10490423 Canada Inc., operating as I2020 Vision (“I2020 Vision”) against Optical Vision Canada Ltd. (“Optical Vision”), Antranik Kechichian (Optical Vision’s principal), and 1951584 Ontario Inc.
[4] I2020 Vision alleges that it leased commercial premises from Optical Vision at 2450 Lancaster Road in Ottawa (“the leased premises”). The defendant 1951584 Ontario Inc. (“195”) is a financing corporation which held a mortgage against the leased premises.
[5] Pursuant to the Order of Mew J. dated May 19, 2021, 195 obtained judgment against Optical Vision and Antranik Kechichian, which included an order that Optical Vision deliver possession of the leased premises. 195 enforced the Order, and I2020 Vision has been locked out of the leased premises since January 20, 2022. I2020 Vision alleges that it was never served with a Notice to Vacate, and that its eviction was illegal. As against Optical Vision and Antranik Kechichian, the plaintiff alleges that these defendants breached the covenant of quiet possession under the lease by defaulting under the mortgage.
Antranik Kechichian’s proposed third-party claim
[6] Mr. Kechichian sold his company to Le Groupe Savard in September 2016. Under the agreement, Mr. Kechichian was to be paid $18,000,000, of which $6,000,000 was due on closing and, according to Mr. Kechichian, the remaining $12,000,000 would be due over five (5) years. Approximately seven (7) months after the sale closed, Le Groupe Savard commenced proceedings under the Companies’ Creditors Arrangement Act (the “CCAA”) and eventually filed for bankruptcy.[^3] Kaufman LLP represented Mr. Kechichian and Optical Vision Canada in the sale transaction.
[7] Mr. Kechichian did not attach a draft of his proposed third-party claim, but his allegations are described in his notice of motion. Mr. Kechichian alleges that Kaufman LLP and four lawyers working for that firm were negligent in performing the professional duties they owed him as a former client. As against 195, Mr. Kechichian alleges that it did not take any steps during the CCAA process to protect its interest to secure assets that were leased to Optical Vision and for which Mr. Kechichian was a personal guarantor.
Issue
[8] The issue on this motion is whether the Court should grant Mr. Kechichian leave to bring an application under s. 140 of the Courts of Justice Act to authorize him to bring the proposed third-party claim.
[9] Under s. 140(4) of the Courts of Justice Act, a court shall only grant leave to commence or continue a proceeding if it is satisfied that the proceeding (1) is not an abuse of process and (2) there are reasonable grounds for the proceeding. Because a Chavali Order engages the court’s supervisory role to ensure that the person has a genuine reason for recourse to court, it is reasonable that the same considerations under s. 140(4)(a) would apply to the motion albeit flexibly and at a lower burden of proof.
Disposition
[10] I decline to grant Mr. Kechichian leave to bring an application under s. 140 of the Courts of Justice Act because the allegations in the proposed proceedings duplicate past legal actions, were determined to be without merit, and are brought in the wrong forum.
[11] Mr. Kechichian has brought separate legal actions against Kaufman LLP in the past.[^4] Mr. Kechichian has also previously attempted to bring claims against Mr. Laurent Debrun.[^5] Mr. Kechichian claims that the proposed third parties were negligent in their duties to him as a former client – this claim is identical to Mr. Kechichian’s previous claims. Mr. Kechichian’s proposed third-party claim arises from the same fact scenario as considered in Smith J.’s decision: the 2016 sale of his business to Essilor. The four named persons are lawyers who are alleged to have “ignored their due diligence and undertakings during the sale” of Mr. Kechichian’s business. The Applicant is seeking to re-litigate matters that have already come before the Court.
[12] Moreover, on May 26, 2021, Gouin J. of the Quebec Superior Court considered identical allegations against the same Kaufman LLP lawyers and ruled them baseless.[^6] The matter came before the Quebec Superior Court in the context of a motion to set aside Mr. Kechichian and Optical Vision’s deemed discontinuance for failure to meet a deadline, under article 177 of the Quebec Code of Civil Procedure.[^7] The Court was required to consider several factors, including the proceeding’s apparent merits. Gouin J. considered the merits of Mr. Kechichian’s allegations against Kaufman LLP’s counsel and determined that they were frivolous, and based on suspicions and conspiracy theories.[^8]
[13] Optical Vision and Antranik Kechichian sought an extension of time to appeal Gouin J.’s decision. On September 27, 2022, the Quebec Court of Appeal denied the extension, ruling that the appeal had no chance of success.[^9]
[14] Finally, with respect to the allegations that 195 did not take any steps during the CCAA process to protect its interest and secure assets that were leased to Optical Vision, Mew J. considered and rejected these allegations.[^10] As mentioned above, 195 brought an action against Mr. Kechichian and Optical Vision for the repayment of certain loans. Mr. Kechichian responded to 195’s motion for summary judgment by arguing that 195 “had a duty to seize, protect and/or sell the collateral subject to the security agreements before pursuant payment under the loans and guarantees”.[^11] Mew J. concluded that 195 had no obligation to enforce its security prior to calling upon a guarantee.
[15] Mr. Kechichian’s motion is dismissed.
Alexandre Kaufman
Associate Justice Kaufman
DATE: September 14, 2022
COURT FILE NO.: CV-22-00088557-0000
DATE: 2022-09-14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 10490423 CANADA INC. v. 1951584 ONTARIO INC. et al
BEFORE: Associate Justice A. Kaufman
COUNSEL: Antranik Kechichian, for the Defendant/Moving Party
No Counsel, for the Responding Party (motion in writing made without notice)
ENDORSEMENT
Associate Justice A. Kaufman
DATE: September 14, 2022
[^1]: R.S.O. 1990, c. C.43. [^2]: Kaufman LLP v. Kechichian and Essilor v. Kechichian, 2021 ONSC 1173 [Smith J.’s decision]. [^3]: R.S.C., 1985, c. C-36. [^4]: Smith J.’s decision, at paras 11-12. [^5]: Smith J.’s decision, at para 36. [^6]: Optical Vision of Canada Ltd. c. Essilor Groupe Canada Inc., 2021 QCCS 2103 [Optical Vision, QCCS]. [^7]: CQLR c. C-25.01. [^8]: Optical Vision, QCCS, at paras. 82-101. [^9]: Optical Vision of Canada Ltd. c. Essilor Groupe Canada inc., 2021 QCCA 1444, at para 7. [^10]: 1951584 Ontario Inc. v. Kechichian, 2021 ONSC 3617. [^11]: Ibid, at para 18.