Court File and Parties

Court File No.: CV-19-00617948-0000 Date: 2023-08-31 Ontario Superior Court of Justice

Between: MD ZAKIR HOSSAIN, Plaintiff – and – MOHAMMED ZAHIDUR RAHIM, Defendant

Counsel: Alamgir Hussain, for the Plaintiff, Defendant by Counterclaim Peter D. Woloshyn, for the Defendant, Plaintiff by Counterclaim

Heard: May 15, 16, 17 and 19, 2023

Before: Cavanagh J.

Introduction

[1] The Plaintiff brings this action for payment of the sum of $100,000 representing the amount alleged to be owing in respect of a loan he made to the Defendant.

[2] The Defendant defends the main action on the ground that the loan was subject to conditions that have not been fulfilled and, accordingly, the loan is not yet due and payable.

[3] The Defendant counterclaims for damages in the amount of $2 million caused by the Plaintiff’s alleged breach of a partnership agreement in regard to certain properties in respect of an alleged land assembly project. The Defendant seeks to set off any amount owed to the Plaintiff against the damages he claims. The Defendants also seeks other relief in relation to the alleged partnership agreement.

[4] For the following reasons, the Plaintiff’s action is allowed and the Defendant’s counterclaim is dismissed.

Factual Background

[5] I am satisfied that the following facts are established by the evidence at trial.

[6] The Plaintiff and the Defendant came to know each other as neighbours. Each owned a house on Thatcher Avenue in Scarborough. The Defendant rented his house at 56 Thatcher Ave. although he was often in the neighbourhood. The Plaintiff and the Defendant attended the same mosque. They became friends. Both are well educated and experienced businessmen.

[7] Near the houses owned by the Plaintiff and by the Defendant on Thatcher Ave. there is a property at 2733 Kingston Road, Toronto on which a motel was operating. The Plaintiff and the Defendant thought that the motel property, combined with the Defendant’s property and another adjacent residential property at 60 Thatcher Ave., could be developed through construction of townhouses. They took steps to pursue this townhouse development project together.

[8] On September 30, 2015, the Plaintiff and the Defendant entered into an agreement of purchase and sale with the owner of the motel property for the purchase of the property at 1733 Kingston Rd. for a price of $1.5 million. The Plaintiff provided $175,000 of his own funds as a deposit. The Plaintiff entered into an agreement of purchase and sale (with the same seller) for the purchase of 60 Thatcher Ave. The Plaintiff provided the deposit of $25,000.

[9] On October 2, 2015, the Plaintiff and the Defendant entered in an agreement amending the agreement of purchase and sale for the motel property on Kingston Road to substitute a company, 9459979 Canada Inc. (“945”), as purchaser. The shares of 945 were and are owned by the Plaintiff and he is the sole director.

[10] There were difficulties raising mortgage financing to complete the purchase of the motel property. If the sale transaction was not completed, the Plaintiff would forfeit his deposit. To avoid this outcome, he urgently took steps to raise the money needed to complete the purchase of the motel property and 60 Thatcher Ave.

[11] The Plaintiff was able to raise funds to complete the purchase of the motel property through 945 as purchaser without mortgage financing. Before closing, he asked the Defendant to assist with money to close. The Defendant agreed to advance $100,000 and he provided a bank draft to the Plaintiff. Ultimately, the Plaintiff did not need these funds to close, and he returned the bank draft to the Defendant uncashed.

[12] The Plaintiff purchased 60 Thatcher Ave. at the same time at a price of $500,000. This transaction was completed with the Plaintiff’s money as a down payment and additional mortgage financing.

[13] The Defendant did not provide any money for the purchase of the motel property at 1733 Kingston Rd. or 60 Thatcher Ave.

[14] The Defendant took the lead on the townhouse development project. He engaged an architect to do some preliminary work, including sketches. On November 9, 2016, the architect provided an engagement proposal for his services going forward. The properties involved in the proposed townhouse development project were 2733 Kingston Road, 60 Thatcher Ave. and 56 Thatcher Ave. Acceptance of the proposal would have required a commitment of approximately $500,000.

[15] By late 2017 or early 2018, the Plaintiff and the Defendant agreed that they would not pursue the townhouse development project.

[16] The Plaintiff and the Defendant understood that there was development potential for the owner of the three properties together and that enhanced value that could be achieved through a sale of these three properties together. When they abandoned the townhouse development project, they agreed to pursue the sale of these three properties together. The Plaintiff wanted to add his property at 52 Thatcher Ave. to the package of properties to be sold, and the Defendant did not object.

[17] The Plaintiff, the Defendant (and his wife), and 945 retained Colliers as their exclusive selling agent for the sale of the four properties together. A written agreement was made as of January 21, 2018 to appoint Colliers as the exclusive selling agent for the four properties.

[18] Colliers found an experienced developer, Armaan Salek, as a prospective purchaser. Mr. Salek, through a numbered company, made an informal offer to purchase the four properties for a combined price of $6 million, with separate prices allocated to each of the four properties.

[19] On February 5, 2018, Mr. Salek made four formal offers to purchase the four properties for a combined price of $6 million, with the following individual prices: 52 Thatcher ($1,100,000), 60 Thatcher ($700,000), 56 Thatcher ($1,100,000), and 2733 Kingston Road ($3,100,000). The offers were open for acceptance until February 9, 2018 after which they were null and void. The offers were not accepted and became null and void.

[20] On February 14, 2018, the Colliers representative sent an email to the Plaintiff and the Defendant by which he communicated the terms of a restructured proposal from Mr. Salek. Colliers explained that the restructured proposed purchase took value from the motel property and added value to the properties owned by the Plaintiff and by the Defendant which would save capital gains tax on the sale of the motel property. The prospective purchaser also added a lease back of the motel for two years that would add value. According to Colliers, with the incentives, the combined value was roughly $7 million. The formal offers were not put into evidence. These offers were not accepted.

[21] On March 8, 2018, the Plaintiff, 945, and the Defendant (and his wife) made four offers to sell the four properties using the same form of agreement of purchase and sale that had been used by Mr. Salek, with some revisions. The prices for the four properties were: 52 Thatcher ($1,990,000), 56 Thatcher ($1,100,000), 60 Thatcher ($710,000), and 2733 Kingston Rd. ($2,300,000). In addition, clauses were added to the offers for 60 Thatcher (owned by the Plaintiff) and 56 Thatcher (owned by the Defendant and his wife) providing for additional consideration in the form of condominium units in the purchaser’s new development: 3,720 square feet for 60 Thatcher and 930 square feet for 56 Thatcher Ave.

[22] These offers were not accepted by Mr. Salek.

[23] Colliers continued to pursue a sale of the four properties. On May 24, 2018 Colliers sent draft offers to the Plaintiff and the Defendant to be provided to Mr. Salek. They did not sign these draft offers. On May 29, 2018, the Plaintiff sent an email to Colliers (copying the Defendant) with the terms of counter offers to be made to Mr. Salek for the sale of each of the four properties at specified prices. The proposed terms were that 25% of the purchase prices were to be paid on closing and the vendors would take back mortgages for 75% of the prices. The combined price for the four properties was $7.5 million with the following individual prices: 2733 Kingston Rd. ($2,850,000), 60 Thatcher ($750,000), 52 Thatcher ($2,550,000) and 56 Thatcher ($1,350,000). Each seller would enjoy a lease of the property after closing and before full payment.

[24] No agreements were reached at that time with Mr. Salek (or any other purchaser).

[25] On November 7, 2019, the Plaintiff sold 60 Thatcher Ave. to a company owned by Mr. Salek for a sale price of $700,000. The remaining three properties have not been sold.

[26] On May 22, 2018 the Defendant asked the Plaintiff to provide him with a personal loan in the amount of $100,000. He advised by email that he needed the money because he had come up short for his upcoming closing for a property at 35 Drake Crescent which was scheduled to close on June 1. The Plaintiff obtained a bank draft from his bank and provided it to the Defendant that day. The draft was cashed.

[27] The Plaintiff sent emails to the Defendant beginning in December 2018 asking for repayment of the $100,000 loan plus interest at the rate charged to the Plaintiff on his line of credit at his bank. He testified that he made oral requests earlier. On December 27, 2018, the Plaintiff sent an email to the Defendant that reads:

Last day we could not finished talking about the loan due to time shortage.

At the time the borrowing you asked it for three months. When I asked the money back in November 2018 you give me idea that at the time of your new house i.e. 35 Drake crescent closing or within second week of January 2019 you will back the fund.

I give you CAD $100,000 in 24 th May 2018. The fund cost is 4.45%.

You know line of credit how it works they charge interest every months. Next months interest become capital. But this small amount of interest I don’t want to calculate compound math.

Please reimburse fund cost within December 31, 2018. Please keep your January 2019 2 nd Week commitment for return the principal amount.

[28] The Defendant responded the next day:

I understand .... I will do my best - I explained to where I got caught with this deal. I trusted you, you can trust me ...

[29] The Plaintiff followed up by emails sent in January 2019. The Defendant responded to the Plaintiff’s January 19, 2019 email that day and wrote:

You left everything undone with me, broke all the commitments we agreed upon. Knowing all the facts you are ignoring as if it’s a game and you wanna play your way.

Pls finish this either way – we are not done yet. You left the meeting assuring me a resolution.

[30] The Plaintiff replied that day writing that the Defendant was “mixing up with one another” and denying that he had broken a single commitment. He repeated that the Defendant has not repaid the loan. He wrote that “2733 project is different”. The Plaintiff wrote that the two deals are separate; one is a clear loan, and the other deal is progressing.

[31] There was further email correspondence. The Defendant has not made any payment toward the $100,000 advance he received from the Plaintiff.

Analysis

[32] In this action, the Plaintiff seeks judgment for $100,000 plus interest at the rate of his line of credit or, alternatively, under the Courts of Justice Act.

[33] The Plaintiff made other claims in his statement of claim for unspecified amounts of general damages, as well as punitive and exemplary damages, for false and malicious statements allegedly made by the Defendant about the Plaintiff and his business. At trial, the Plaintiff abandoned these claims.

[34] The Defendant admits in his statement of defence that he borrowed $100,000 from the Plaintiff. The Defendant pleads that he and the Plaintiff agreed that the Defendant would repay the $100,000 loan on completion of the sale of the parcels of land at 2733 Kingston Road and 52, 56 and 60 Thatcher Avenue in Scarborough. The Defendant pleads that the repayment to the Plaintiff was to be made as an adjustment in his favour from the sale proceeds. The Defendant pleads that the assembled parcels of land have not been sold and, thus, the loan is not due and payable.

[35] The Defendant pleads that he and the Plaintiff became partners in acquiring and assembling several parcels of land including 2733 Kingston Road and 52, 56 and 60 Thatcher Avenue in Scarborough. The Defendant pleads that he and the Plaintiff planned to sell the assembled parcels of land to a developer. The Defendant pleads that the Plaintiff has attempted to resile from the partnership agreement between him and the Defendant.

[36] The Defendant counterclaims for damages in the amount of $2,000,000 to compensate him for lost profits, interest, costs and other expenses caused by the Plaintiff’s breach of the partnership agreement in regard to the four properties. Alternatively, the Defendant counterclaims for damages for unjust enrichment. Alternatively, the Defendant claims an equitable or constructive trust over the profit on the sale by the Plaintiff of any of the lands at 2733 Kingston Road and 52 and 60 Thatcher Avenue.

[37] The Defendant claims a right to set-off from any amounts the Court may order payable to the Defendant any amount ordered to be paid by him to the Plaintiff.

[38] There are two issues that arise in this action and counterclaim:

a. Is the Defendant liable to the Plaintiff for repayment of the $100,000 loan?

b. Is the Plaintiff liable to the Defendant for damages or other relief in relation to the alleged partnership agreement between the Plaintiff and the Defendant?

[39] I address each issue in turn.

Is the Defendant liable to the Plaintiff for the principal amount of the $100,000 loan?

[40] There is no dispute that the Plaintiff lent the Defendant $100,000. The Defendant defends the action on the ground that repayment of this loan was conditional on sale of the four properties and, until they are sold, the loan is not due and payable.

[41] There is no written record that in May 2018, when the loan was made, the Defendant and the Plaintiff agreed that repayment of the loan was conditional on a sale of the properties that were the subject of the planned townhouse development project and, later, a sale of these properties (and 52 Thatcher) to a developer. The Defendant’s request for the loan states that the loan is needed in connection with the purchase of a different property at 35 Drake Crescent. The email correspondence at the time of the loan advance makes no mention of the other four properties.

[42] On December 27, 2018, the Plaintiff asked for repayment of the loan. In response, the Defendant wrote “I understand”, that he would do his best to repay the loan, and that the Plaintiff could trust him. The Defendant did not say that repayment was not due because the other four properties had not been sold. If the parties had agreed that repayment of the loan was conditional on the sale of the other properties, I would expect the Defendant to have taken this position in response to the December 27, 2018 email.

[43] When he was examined in chief, the Defendant agreed that the $100,000 was needed in connection with closing of his purchase of the Drake Crescent property (to pay realty taxes that were overdue). The Defendant denied that there were terms for this advance, but he agreed that he had discussed three months as the time for repayment. The Defendant testified that when this advance was made, he and the Plaintiff were working on the sale of the four properties and the sales were expected in a short period of time. The Defendant suggested in his evidence that the Plaintiff was in control of the sale of the other four properties and he could ensure that the loan was repaid by completing the sale of the four properties.

[44] The Defendant did not testify that he and the Plaintiff agreed that repayment of the loan was conditional on sale of the other four properties. The email correspondence at the time the loan was made does not support the existence of such a condition. There is no evidence to support a finding that the loan was subject to such a term.

[45] I conclude that the loan was payable after three months. The Defendant is liable to the Plaintiff for the principal amount of $100,000.

[46] The Plaintiff claims interest at the rate charged to him on his line of credit. The Plaintiff did not testify that the Defendant agreed to pay interest at this rate when the loan was made. I conclude that there was no agreement that the loan would bear interest at the rate of interest charged to the Plaintiff on his line of credit. The Plaintiff is entitled to pre-judgment interest pursuant to the Courts of Justice Act.

Is the Plaintiff liable to the Defendant in relation to a partnership agreement for the development or sale of the Kingston Road and Thatcher Avenue properties?

[47] The Defendant contends that he and the Plaintiff made an oral partnership agreement at a meeting they had at the motel in 2015 soon after the closing of the purchase of the Kingston Road property.

[48] The Defendant testified that he had received an offer to purchase his property at 56 Thatcher Ave. for $2 million that he had not accepted. He testified that he and the Plaintiff agreed that the Defendant’s property at 52 Thatcher was valued at approximately $1.5 million for purposes of their agreement, and that 1733 Kingston Road and 60 Thatcher Avenue were valued at approximately $1.5 million. These three properties were the only properties needed for the townhouse development. The Defendant contends that he and the Plaintiff agreed to develop these three properties as partners and, as part of the partnership agreement, they agreed to divide the profits equally because each had contributed equivalent value to the partnership.

[49] The Defendant contends that when he and the Plaintiff decided not to develop the three properties themselves (in late 2017 or early 2018) they agreed to sell the three properties together as partners with the net proceeds from the sale of these three properties to be divided equally. The Defendant testified that he agreed to add 52 Thatcher to the assembly of properties to be sold to help the Plaintiff and he agreed that the proceeds of sale of this property would belong to the Plaintiff alone.

[50] The Plaintiff denies that he made a partnership agreement with the Defendant or that they were or are partners in respect of a business involved in a sale of the three properties, or the three properties together with 52 Thatcher Ave., the Plaintiff’s house. The Plaintiff’s evidence is that he paid $1.6 million to purchase 1733 Kingston Rd. (through 945), which included the $1.5 million purchase price and $100,00 for closing costs, and $500,000 to acquire 60 Thatcher Ave. The Plaintiff disputes that the value of the Defendant’s house at 56 Thatcher Ave. was $1.5 million in 2015. The Plaintiff states that he and the Defendant were to agree on the values of the properties, with an equalization payment to be made, and that their agreement with respect to the townhouse development project was required to be in writing and agreed upon. These things did not happen, and the parties agreed to abandon the pursuing the townhouse development project.

[51] The Plaintiff relies on the evidence that the properties at 1733 Kingston Road and at 60 Thatcher Avenue were acquired by him (1733 Kingston Road through 945) without any financial contribution by the Defendant. He testified that it was open to the Defendant to acquire an interest in the motel property by acquiring shares on 945, and that this property was acquired through a company to allow this to happen without adverse tax consequences. The Defendant never acquired shares in 945.

[52] The Plaintiff testified that he wrote an email to the Defendant on November 7, 2018 and attached a document addressing valuation of their interests in the proceeds of sale of the four properties. In this document, the Plaintiff refers to four terms of their oral agreement made in March 2016:

• You will invest 50% and me 50% for future dream town house project
• Before start project we will do the valuation of the property
• Whichever less than equal share you will invest to be equal
• You will do a written contract between us.

[53] In the document, the Plaintiff states that he reminded the Defendant several times to do the written agreement but it did not happen. The Plaintiff confirmed this in his evidence at trial.

[54] The Plaintiff testified that the oral agreement was nothing more than an agreement to agree, and that he and the Defendant had agreed that a written agreement was needed to specify the terms of their agreement with respect to development or sale of the properties. The Plaintiff testified that he did not agree to an equal sharing of the profits from development of the properties or the net proceeds from a sale of the properties. The Plaintiff testified that it would have been foolish for him to agree to a 50-50 sharing of net proceeds of sale where the market value and land area of the three properties he owned (directly or through 945) substantially exceeds the market value and land area of the property owned by the Defendant.

[55] The Plaintiff testified that he and the Defendant knew that the value of the four properties if they were sold together would exceed their values if sold separately (because of the development potential) and, for this reason, it made sense to try to realize this financial benefit. He testified that this was why he and the Defendant agreed to retain Colliers to try to sell the four properties together. The Plaintiff contends that this arrangement was not a partnership, but only an agreement by separate landowners for their mutual benefit. The agreement to sell the properties together was not successful. The Plaintiff’s position is that each landowner is at liberty to deal with his land as he sees fit.

[56] In his evidence in chief, the Defendant testified that during his oral discussion with the Plaintiff at the motel (soon after the closing of the purchase of the motel property and 60 Thatcher Avenue in December 2015), he agreed with the Plaintiff that the details of their oral agreement (of which, the Defendant testified, they had made rough notes at the meeting) would be provided to the Defendant’s lawyer and put into a written agreement. He testified that this was not done because he was very busy.

[57] This evidence is consistent with the Plaintiff’s email dated August 24, 2016 sent to the Defendant. In this email, the Plaintiff wrote that “[w]e have to make a detail road map and time line for the project”. He wrote that they had to address “the financial obligation”, “[r]esponsibility”, “[p]roperty valuation and equity and debt proportion of the project”. The Plaintiff asked when the Defendant was ready to discuss these items. There is no evidence of a response. This email shows that the Plaintiff and the Defendant understood that the terms of their development project, including their financial obligations, still needed to be settled and formalized.

[58] In Backman v. Canada, 2001 SCC 10 the Supreme Court of Canada explained the principles to be applied to determine whether a partnership has been created. The Court referred to s. 2 of the Partnerships Act, R.S.O. 1990, Chapter P.5 that describes a partnership as “the relation between persons carrying on business in common with a view to profit”.

[59] In Backman, the Court described the three essential ingredients of partnership as (1) a business, (2) carried on in common, (3) with a view to profit. The Court held, at para. 25, that to ascertain the existence of a partnership, the courts must inquire into whether the objective, documentary evidence and the surrounding facts, including what the parties actually did, are consistent with a subjective intention to carry on business with a view to profit. The Court held, at para. 26, that courts must be pragmatic in their approach to the three essential ingredients of partnership and that whether a partnership has been established in a particular case will depend on an analysis and weighing of the relevant factors in the context of all of the surrounding circumstances.

[60] In Backman, the Court held, at para. 20, that the meaning of “carrying on business” may differ depending on the context in which it is used. The existence of a valid partnership does not depend on the creation of a new business because it is sufficient that an existing business was continued. The Court held, at para. 25, that in determining whether a business is carried on “in common”, it should be kept in mind that partnerships arise out of contract, and that the common purpose required for establishing a partnership will usually exist where the parties entered into a valid partnership agreement setting out their respective rights and obligations as partners.

[61] The Defendant has not shown that he and the Plaintiff were carrying on business in common. The evidence shows that in 2015 the Plaintiff and the Defendant intended to pursue a townhouse development project together and that they took steps to do so. However, an intention to form a partnership is not sufficient because the fundamental criteria of a valid partnership must still be met. See Backman, at para. 27. The Plaintiff and the Defendant had discussions about the terms of a contract that would govern their relationship in respect of the proposed townhouse development, and they agreed that the terms of contract would be reduced to writing and agreed upon, which was not done. The Plaintiff and the Defendant did not agree on the values each had contributed to the proposed development project, and no steps were ever taken to put any of the properties into the names of both the Plaintiff and the Defendant or the name of a firm operating as a partnership. The Plaintiff and the Defendant did not agree on how the financing for the development project would be raised and what obligations each would assume in relation to such financing. They did not agree on a timeline for the project. They did not agree on the rights of each of them in respect of the income that was being earned from the motel property at 2733 Kingston Rd. or the Defendant’s property at 56 Thatcher Ave. From the time that the motel property was acquired by 945, the income from this property went to 945 and the income from 56 Thatcher went to the Defendant. The property at 60 Thatcher has been sold, and the Defendant’s property at 56 Thatcher has been mortgaged, without the consent of the non-owner.

[62] It was not essential that the Plaintiff and the Defendant agree in writing to the terms of a partnership agreement. In Bawitco Investments Ltd. v. Kernels Popcorn Ltd. the Court of Appeal held that when parties agree on all of the essential provisions to be incorporated in a formal document with the intention that their agreement shall thereupon become binding, they will have fulfilled all the requisites for the formation of a contract. The fact that a formal written document to the same effect is to be thereafter prepared and signed does not alter the binding validity of the original contract. The Court of Appeal went on to hold that when the original contract is incomplete because essential provisions intended to govern the contractual relationship have not been settled or agreed upon; or the contract is too general or uncertain to be valid in itself and is dependent on the making of a formal contract; or the understanding or intention of the parties, even if there is no uncertainty as to the terms of their agreement, is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original or preliminary agreement cannot constitute an enforceable contract.

[63] The Defendant has not shown that he and the Plaintiff orally agreed on all of the essential terms to be included in an agreement for the development of townhouses on the three properties. This would be a relatively complex project involving the need for an architect and other professional consultants. The values of the contributions to the project, based on the evidence of the Defendant, were approximations only. The Defendant was not a shareholder of 945 and, if the three properties were to be owned jointly and developed together, there would need to be some formal record of how the interests of the Plaintiff and the Defendant would be divided and shared.

[64] I accept the evidence of the Plaintiff that the agreement between the Plaintiff and the Defendant with respect to the townhouse development was to be put into writing before either party would have enforceable contractual obligations to each other. The Defendant agreed that his lawyer was to prepare a written agreement and this was never done.

[65] When the Plaintiff and the Defendant abandoned the townhouse development plan and decided to sell the three properties, plus the Plaintiff’s house at 52 Thatcher Avenue, they did not agree on terms for how the net proceeds of sale would be divided. There is no contemporaneous written record of such an agreement, and the Defendant did not testify that a new agreement was made. He relies on the discussions at the motel in late 2105 or early 2016 as being the basis for the agreement to divide the net proceeds of sale of the three properties (excluding 52 Thatcher) equally. The Defendant has not shown that he and the Plaintiff reached agreement on all essential provisions of a contract for the sale of the four properties or that the parties intended that their oral agreement would create binding contractual obligations without a formal written agreement.

[66] When I consider and weigh the relevant factors in the context of all of the circumstances, I conclude that the Defendant has failed to establish that he and the Plaintiff formed a partnership through which they carried on a townhouse development business in common. I conclude that the Defendant has failed to establish that he and the Plaintiff formed a partnership by which they carried on a business in common for the sale of the four properties, or even three of them (excluding 52 Thatcher Ave.). I find that at all times, the registered owner of each of the four properties was the beneficial owner of the property, and that the owner of each of the properties was and is entitled to act in his own interests in relation to each property.

[67] The Defendant has failed to show that the Plaintiff breached a partnership agreement or that the Plaintiff has been unjustly enriched. The Defendant has failed to show that any of the properties registered in the name of 945 or the Plaintiff is subject to a constructive trust in his favour.

[68] Further, and in any event, I am not satisfied that the Defendant has shown that he suffered any damages given that 2733 Kingston Rd., 52 Thatcher and 56 Thatcher Ave. remain unsold, and the Defendant has had the benefit of the equity in 56 Thatcher to secure mortgage advances.

Disposition

[69] For these reasons:

a. The Plaintiff’s claim is allowed. The Plaintiff is granted judgment against the Defendant for payment of the amount of $100,000. The Plaintiff is entitled to prejudgment interest on this amount in accordance with the Courts of Justice Act.

b. The Defendant’s counterclaim is dismissed.

[70] If the parties are unable to resolve costs, they may make written submissions in accordance with a timetable (and with page limits) to be agreed upon by counsel and approved by me.

Cavanagh J. Released: August 31, 2023

COURT FILE NO.: CV-19-00617948-0000 DATE: 2023-08-22 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MD ZAKIR HOSSAIN – and – MOHAMMED ZAHIDUR RAHIM REASONS FOR JUDGMENT Cavanagh J. Released: August 31, 2023