



COURT OF APPEAL FOR ONTARIO

CITATION: Khan v. Krylov & Company, 2020 ONCA 13

DATE: 20200108

DOCKET: C66794

Simmons, Benotto and
    Harvison Young JJ.A.

BETWEEN

Zaka Ullah Khan

Plaintiff
(Appellant/Respondent by way of cross-appeal)

and

Krylov & Company
and Devry Smith Frank
    LLP

Defendants
(Respondents/
Appellant by way of cross-appeal
)

Zaka Ullah Khan,
    self-represented

Bronwyn M. Martin and Visnja Jovanovic, for the
    respondent/appellant by way of cross-appeal Krylov & Company

Louis P. Covens, for the respondent Devry Smith Frank
    LLP

Heard and released orally: December 13, 2019

On appeal
    from the order of Justice James Stribopoulos of the Superior Court of Justice,
    dated March 15, 2019, with reasons reported at 2019 ONSC 1666, 91 C.C.L.I. (5
th
)
    70 and from the costs order, dated May 1, 2019, with reasons reported at 2019
    ONSC 2714.

REASONS FOR DECISION

[1]

The motion judge dismissed the action pursuant to Rule 20, because he
    was satisfied that the action raised no genuine issue requiring a trial. In his
    submissions, Mr. Khan identifies a number of factual disputes and submits that a
    trial was required to resolve them. Those factual disputes include whether he
    actually signed the release, what occurred during his meeting at Krylov &
    Company and the length of this meeting. Mr. Khan submits that the motion judge
    should not have concluded that there was no genuine issue requiring a trial
    given these disputes.

[2]

We agree that while these factual disputes exist, they are not material
    to the resolution of the action, and therefore, the motion judge did not err in
    concluding that there was no genuine issue requiring a trial.

[3]

Mr. Khans claim as pleaded was entirely premised on his claim that his
    tort action had settled for an amount higher than $82,500, but that the
    respondents only forwarded the smaller sum to him and misappropriated the rest.
    The motion judge found that there was no evidence before him that could support
    the conclusion that the tort action settled for a greater amount, and that the money
    had been misappropriated by the respondents. Given this conclusion, the action
    could not succeed.

[4]

The motion judge found that there was substantial evidence before him
    that the total value of the settlement was $82,500 and that there was no evidence
    that could displace this evidence.

[5]

For these reasons, the appeal is dismissed. Leave to appeal the costs
    award is denied and leave to cross-appeal the costs order is also denied.

[6]

Costs of the appeal are awarded to the respondent, Devry Smith Frank LLP
    in the amount of $2,830 on a partial indemnity scale including taxes and
    disbursements. No costs of the appeal are awarded to the respondent, Krylov
    & Company and no costs of the cross-appeal are awarded to Mr. Khan.

Janet Simmons J.A.

M.L. Benotto J.A.

A. Harvison Young
    J.A.


