Yigal Eli David Rifkind

The Court of Appeal for Ontario dismissed the appeal of Shahin Songhorigakien from a summary judgment ordering her to pay $500,000 plus interest and costs to the Bank of Montreal under a personal guarantee for a corporate overdraft facility.

The court found no error in the motion judge’s conclusion that there was no genuine issue requiring trial, that the bank owed no special duty to Songhorigakien, and that her non est factum defence had no air of reality.

The court also rejected arguments of procedural unfairness.

This motion concerned the plaintiffs' application for leave to amend their statement of claim.

The court addressed numerous issues with the proposed pleading, including the inclusion of evidence, argument, hyperbole, and personal attacks, contrary to Rule 25.06(1).

The defendants challenged specific footnotes and paragraphs, arguing they did not contain material facts.

The court largely agreed with the defendants, ordering the removal of many challenged sections, including those related to a prior settlement with a non-party, procedural history, and speculative concerns.

The court also addressed the plaintiffs' failure to properly blackline amendments and provide costs outlines.

Costs of the motion were awarded to the defendants.

The plaintiff claimed that she transferred ownership of a cleaning services franchise to the defendant temporarily, with an agreement that it would be returned after six months.

The defendant maintained that the transfer was permanent and that the only agreement was that he would provide work opportunities to the plaintiff and her sons in the future.

After assessing conflicting testimony, documentary evidence, and credibility of witnesses, the court preferred the defendant’s version of events.

The court found that the transfer was intended to be permanent and that there was no agreement requiring the defendant to return the franchise.

The plaintiff therefore failed to establish unjust enrichment or breach of agreement.