Court File and Parties
Court File No.: CV-24-717778 Date: 2025-09-19 Superior Court of Justice - Ontario
Re: Ebury Partners Canada Ltd. and Ebury Partners Finance Ltd., Plaintiffs/Moving Parties
And: National Herring Importing Company Ltd. and William Friedman, Defendants/Responding Parties
Before: Schabas J.
Counsel:
- Monica Kozycz and Dhara Pathak, for the Plaintiffs
- Phil Wallner, for the Defendants
Heard: September 12, 2025
Reasons on Summary Judgment Motion
Overview
[1] The Plaintiffs, Ebury Partners Canada Ltd. ("Ebury Canada") and Ebury Partners Finance Ltd. ("Ebury Finance", collectively "Ebury"), move for summary judgment against the Defendant, National Herring Importing Company Ltd. ("National Herring"), in connection with debts it alleges that National Herring owes the Plaintiffs pursuant to two separate agreements: a Transaction Finance Agreement (the "TF Agreement") and a Foreign Exchange Services Agreement (the "FX Agreement"). Ebury Canada submits it is entitled to $142,251.07 plus interest pursuant to the FX Agreement and that Ebury Finance is entitled to $84,496.40 plus interest pursuant to the TF Agreement. Additionally, Ebury Finance seeks judgment against the Defendant, William Friedman ("Friedman"), the President of National Herring, as a personal guarantor of the obligations of National Herring for the amount due to Ebury Finance under the TF Agreement.
[2] National Herring opposes the motion. It alleges that Ebury made misrepresentations that it would provide National Herring with advice and risk management tools which it failed to do, and which caused the losses allegedly suffered by the Plaintiffs. National Herring submits that a trial is required to determine what representations were made to it which could provide a defence to its liability for the debts.
[3] For the reasons that follow, I find that summary judgment is appropriate in this case and grant judgment for the Plaintiffs.
Summary Judgment Law
[4] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that "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." The word "requiring" was added in 2010. At that time, Rule 20 was also amended to provide judges with the discretion to use additional fact-finding powers designed to expand the scope and use of summary judgment.
[5] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada addressed the issue of summary judgment, including when it is appropriate and the test to be met. Karakatsanis J. summarized the Court's position as follows, at para. 4:
In my view, a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.
[6] At para. 49 of Hryniak, Karakatsanis J. continued:
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.
[7] In Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98, 154 O.R. (3d) 561, the Court of Appeal noted, at para. 27, that "motion judges are required to engage with the Hryniak framework process…look at the evidentiary record, determine whether there is a genuine issue requiring a trial, and assess, in their discretion, whether resort should be taken to the enhanced powers under rr. 20.04(2.1) and (2.2) of the Rules of Civil Procedure."
[8] The Hryniak framework is summarized by the Court of Appeal at para. 24 of Royal Bank as follows:
First, the motion judge should have determined if there was a genuine issue requiring a trial based only on the evidence before her, without using the enhanced fact-finding powers under r. 20.04(2.1) of the Rules of Civil Procedure.
Second, if there appeared to be a genuine issue requiring a trial, the motion judge should have determined if the need for a trial could be avoided by using the enhanced powers under r. 20.04(2.1) – which allowed her to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence – and under r. 20.04(2.2) to order that oral evidence be presented by one or more parties. [Citations omitted]
[9] On a motion for summary judgment, the parties are required to put their best foot forward on the issues. As the Court of Appeal stated in Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5:
A party moving for summary judgment has the evidentiary burden of showing there is no genuine issue for trial. Once this burden is discharged the responding party must prove that its defence has a real chance of success. Each party must put its best foot forward to establish whether or not there is an issue for trial. The court is entitled to assume that the record contains all the evidence the parties would present at trial. [Emphasis added.]
[10] The best foot forward requirement also means the full foot forward. As Corbett J. stated in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 33, aff'd 2014 ONCA 878, leave to appeal to S.C.C. refused [2015] S.C.C.A. No. 97: "The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial." Or, as Karakatsanis J. stated when she was a judge of this Court: "The court is entitled to assume that the record contains all the evidence which the parties will present if there is a trial": New Solutions Extrusion Corporation v. Gauthier, 2010 ONSC 1037, at para. 12, aff'd 2010 ONCA 348.
[11] The Court of Appeal has observed that "the summary judgment process is tailor-made to enforce liquidated claims by creditors against debtors" and that "unless there is a genuine issue for trial, the court should be reluctant to delay a creditor's access to this summary procedure, which enables the creditor to enforce its legitimate contractual claims against debtors and guarantors": 2275518 Ontario Inc. v. The Toronto-Dominion Bank, 2024 ONCA 343, at para. 44.
[12] I am satisfied that this is an appropriate matter for summary judgment. The plaintiffs' action is for a liquidated sum. The issues are legally and factually limited. The defendants must be taken as having put their best, and full, foot forward regarding their position that they were misled by the plaintiffs. Having taken a hard look at the evidence, and without making findings of credibility but drawing limited inferences largely from the absence of evidence, I conclude that the defence does not have a real chance of success, and therefore there is no genuine issue requiring a trial.
Issues
[13] There are two issues to be addressed:
(a) The plaintiffs' proof of entitlement to the sums sought under the FX and TF Agreements from the defendants; and
(b) Whether the defendants have raised a genuine issue for trial respecting liability.
The Plaintiffs' Entitlement to the Liquidated Sums
[14] The sums sought by the plaintiffs arise directly from the two agreements.
[15] Ebury is a money service business that provides trade finance, foreign exchange and global payment services to clients which includes, among other things, support for payments and collections.
[16] In August 2022, National Herring, a processor and supplier of smoked fish and related products, became a client of Ebury. Ebury had approached National Herring to advise of the potential benefits of its foreign exchange service which would allow National Herring to hedge its foreign exchange risk as National Herring engaged in approximately $4.5 million in foreign exchange transactions each year.
[17] National Herring agreed to abide by Ebury's FX Agreement. That agreement provided for "forward contracts" under which Ebury would agree to provide funds at a locked-in exchange rate which could be used to pay suppliers and National Herring could have certainty over the exchange rate. Within a certain period of time, National Herring was obliged to settle the amount of the transaction in Canadian dollars with Ebury. If National Herring wished to cancel a transaction, it would be required to pay losses or costs incurred by Ebury, if any, based on the exchange rate at the time of cancellation.
[18] Ebury sues over two forward contracts which came due in July 2023. The first, entered into on February 24, 2023 for US$752,666.66 at an exchange rate of $1.393, matured on July 27, 2023. The second forward contract was entered into on July 4, 2023 for US$1.5 million at an exchange rate of $1.373, with a maturity date of July 11, 2023.
[19] Rather than paying the amounts due on the maturity dates, National Herring cancelled these two contracts. As a result of unfavourable exchange rates, National Herring became liable for the losses on the value of those contracts in the total amount of $142,251.07.
[20] National Herring, once it utilized the FX Agreement, was also able to borrow from Ebury under the TF Agreement at favourable terms. On November 7, 2022, at National Herring's request, Ebury paid one of National Herring's suppliers US$162,710.19 pursuant to the TF Agreement. National Herring agreed to repay this amount, which was CAD$231,256.07, plus a fee of CAD$5,088.70 on or before April 6, 2023. National Herring paid $50,000 of this debt on April 5, 2023, and payment of the balance was extended. Between April 28 and July 13, 2023, National Herring paid another $100,000 toward the TF Transaction. However, $84,496.40 plus accrued interest remains outstanding.
[21] National Herring has led no evidence disputing the calculations of damages owing under the two forward contracts. With respect to the TF amount, in response to Ebury's demand letter in August 2023, National Herring's Controller stated that the amount is "not disputable and it will be reimbursed fully." Nor is there any evidence that Friedman should not be held liable on his personal guarantee.
National Herring's Defence
[22] National Herring submits that it should not be required to pay the amounts claimed, largely on the ground that Ebury failed to provide currency exchange advice and risk management tools that it had agreed to provide under the FX Agreement and represented that it would provide prior to National Herring entering into the Agreements.
[23] National Herring's evidence is that Janny Fletcher, an account director at Ebury Canada, approached it in August 2022, offering trade finance and currency risk management services. Following a phone call with Rina Papillo, National Herring's Controller, Fletcher sent an email outlining Ebury's services which included, under the heading "Currency Risk Management", "Ongoing discussion on strategy to secure your bottomline from currency loss."
[24] Papillo forwarded Fletcher's email to National Herring's CEO, Mario Maillet. At the time, National Herring was not looking for foreign exchange services. However, according to Maillet, who was National Herring's affiant on this motion, Ebury induced National Herring to enter into the FX Agreement by telling him and Papillo that there would be a lower interest rate on amounts advanced under the TF Agreement if National Herring used the foreign currency exchange services from Ebury Canada. Maillet states that National Herring did not use Ebury Canada's foreign exchange services until after being told that National Herring would only get a preferential rate on the TF Agreement if it used Ebury Canada's foreign currency exchange services.
[25] Maillet's affidavit states that "National Herring communicated to Ebury Canada that it lacked expertise in foreign currency exchange and expected that Ebury Canada would provide it with advice and recommendations about foreign currency exchange transactions in accordance with the representations made by Ms. Fletcher to Ms. Papillo." Maillet provides no details of what was said by "National Herring", nor does he provide any information about the "representations" Fletcher is said to have made to Papillo. Papillo did not provide an affidavit, so much of Maillet's evidence is hearsay.
[26] Maillet also states that Ebury Canada solicited National Herring into the forward contracts, "with no advice, recommendation, or consideration of whether such transactions would be appropriate for, or meet the needs of, National Herring." Maillet states that it was National Herring's understanding that, "at all times Ebury Canada would provide advice, recommendations, and risk management services with respect to the FX Contract and trades contemplated thereunder."
[27] In response, Ebury points to s. 6.8 of the FX Agreement, in which Ebury Canada states:
Whilst we may provide you with information about foreign exchange markets and related matters, we do not provide advice. Any decision you make to enter into a Trade or request a Transfer is made on your own judgment. It is your responsibility to familiarise yourself with foreign exchange products and services.
[28] Maillet says this section was not drawn to his attention when he entered the Agreement. Nor, he says, did Ebury advise of the risks of loss on the forward contracts or how they would be calculated. Maillet says it is still unclear to him how the losses have been calculated.
[29] Boris Delorme, the Country Manager for Canada for Ebury Canada, filed an affidavit responding to Maillet's assertions. He disagreed that Ebury would provide advice, asserting that "Ebury does not typically provide this kind of service to customers like National Herring." Based on information obtained from Fletcher, Delorme stated that National Herring did not communicate its lack of expertise and need for advice to Ebury, that "there was no reason to think that Mr. Maillet was unable to understand FX concepts" and, as Delorme states, "Mr. Maillet was confident with his knowledge of foreign currency exchange transactions."
[30] Delorme's evidence appears to be entirely hearsay. There is no evidence he had any contact with anyone at National Herring. His affidavit, however, refers to and attached emails and transcripts of phone conversations between Fletcher, on behalf of Ebury, and Maillet and Papillo in which transactions are discussed. Those calls show that Fletcher was clear in explaining to National Herring that US dollars purchased through forward contracts had "to be used before a certain date."
[31] In my view, National Herring has not led evidence of representations, or misrepresentations, by Ebury that raise a genuine issue requiring a trial. Maillet's evidence lacks specificity and, to a large extent, is hearsay based on what he was told by Papillo. The emails and transcripts of phone conversations show that while Fletcher may have suggested good times to buy US dollars, he did not provide advice on National Herring's need for the funds. Fletcher warned Papillo, as the FX contract stated, that funds acquired under forward contracts had to be used within a certain period of time. As Ebury's counsel put it in their factum, "the 'risk management tools' that Ebury Canada provides to clients are the FX contracts themselves which, as Ebury Canada representatives explained to National Herring, allow companies like National Herring to hedge risks caused by fluctuating currency when doing business in other countries."
[32] National Herring is a well-established business with significant revenue. It has not led sufficient evidence that Ebury either promised to provide advice or that it was a fundamental term of the FX Agreement that Ebury would do so; indeed, the Agreement states the opposite. National Herring must do more than make vague allegations of representations in order to show its defences have a real chance of success to stave off summary judgment.
[33] Counsel for National Herring also argued that the cause of the losses raises a genuine issue for trial, submitting that they were due to the failure of Ebury to provide advice. However, this submission is dependent on the obligation to provide advice which, I have found, does not raise a genuine issue requiring a trial. Indeed, there is evidence that Ebury saw that National Herring was not drawing down on funds acquired through the forward contracts and raised this with them.
[34] In argument, there was some suggestion that National Herring had been subject to duress, and that Ebury acted unconscionably. However, there is no evidence that National Herring was under duress when it signed the FX Agreement or when it entered into either of the forward contracts. Nor is there any evidence supporting unconscionability.
Conclusion
[35] It follows that the motion for summary judgment is granted. Ebury shall have judgment as requested in the notice of motion, as follows:
(i) Judgment against National Herring for $142,251.07 plus interest pursuant to the FX Agreement;
(ii) Judgment against National Herring for $84,496.40 plus interest pursuant to the TF Agreement; and
(iii) Judgment against Mr. Friedman, on a joint and several basis, for $84,496.40, plus interest payable under the TF Agreement.
[36] Ebury is entitled to its costs of this motion, and of the action, on a partial indemnity basis, which I fix at $25,000.
Paul B. Schabas J.
Date: September 19, 2025