



COURT OF APPEAL FOR ONTARIO

CITATION: Bouji v. Poonai, 2022 ONCA 49

DATE: 20220124

DOCKET: C69210

Strathy C.J.O., Harvison
    Young and Zarnett JJ.A.

BETWEEN

Hedia Bouji also known as Linda
    Bouji

Plaintiff (Respondent)

and

Karrunawatti
    Poonai also known as Kay Poonai

also known as Kay Persaud

Defendant (Appellant)

Eugene J. Bhattacharya and Mary
    Rodriguez, for the appellant

Madeleine Dusseault, for the respondent

Heard: January 17, 2022 by
    video conference

On appeal from the judgment of Justice Frederick
    L. Myers of the Superior Court of Justice, dated February 1, 2021, with reasons
    reported at 2021 ONSC 771.

REASONS FOR DECISION

[1]

The appellant appeals from a summary judgment that
    ordered her to pay the respondent $200,000, together with interest, under a
    promissory note dated August 31, 2016 and a related oral agreement that provided
    for interest on that note.

[2]

In 2016, the appellant introduced the respondent
    to an opportunity to invest $400,000 and acquire shares in Metrozen (Canada)
    Inc. (Metrozen) which had a real estate project located in Scarborough,
    Ontario. The appellant was told by the principal of Metrozen that the funds
    were required to bring a mortgage on the project back into good standing and to
    help keep it current.

[3]

The respondent was prepared to invest $200,000, but
    only if the appellant invested the same amount. The appellant agreed to do so,
    but as she did not have that amount on hand, the respondent agreed to advance
    it on her behalf. The motion judge found that the agreement between the
    appellant and respondent was that the appellant would receive three percent of
    the shares of Metrozen, and the respondent seven percent; the respondents larger
    percentage of shares was because she was putting up funds for the appellant.

[4]

On May 31, 2016, the parties went together to
    the respondents bank to arrange for the $400,000, and then to Metrozens lawyer,
    who deposited the funds into his trust account. In return, two documents were
    provided: (i) a note dated May 31, 2016 (the Metrozen Note) by which Metrozen
    and its principal promised to pay the respondents corporation $400,000 by
    December 1, 2016; and (ii) a Share Agreement whereby Metrozen and its principal
    agreed that seven percent of the shares of Metrozen would be transferred
    to the respondents corporation and the balance of the shares would be pledged
    as security for repayment under the Metrozen Note. Although the appellant is
    not mentioned in the Metrozen Note or Share Agreement, she witnessed the
    execution of both. No document mentioning the appellants three percent was
    provided by Metrozen.

[5]

On August 31, 2016, the parties executed, before
    a notary, the promissory note which is the subject of this action (the August Note).
    Under it, the appellant promised to pay to the respondent the sum of $200,000. The
    August Note recited that this amount had been loaned to the appellant by the
    respondent to purchase three percent of the shares of metro ZEN [
sic
]
    for the project located at 189-195 Milner Avenue, Scarborough, Ontario.

[6]

The parties later discovered that the funds that
    had been advanced on May 31, 2016 were misappropriated by Metrozen or its
    principal. The funds did not go into the Metrozen project, and neither of the
    parties received any shares in Metrozen or any payments from it in return for
    the advance.

[7]

The appellant paid interest to the respondent on
    the August Note at an orally agreed-upon rate until September 2018. From 2016
    to the time she stopped making payments, the appellant sent numerous texts and emails
    to the respondent that acknowledged her indebtedness under the August Note.

[8]

In 2019, the respondent commenced an action
    against the appellant to recover on the August Note and the oral agreement for
    interest. The respondent then successfully moved for summary judgment.

[9]

The motion judge rejected the appellants
    argument that there were genuine issues that required a trial. He specifically
    considered, and rejected, that genuine issues were raised by the three defences
    advanced by the appellant: (a) that the failure of the respondent to ensure both
    that the funds advanced went into the Metrozen project and that the appellant
    received shares in Metrozen meant there was no consideration for the August
    Note; (b) that repayment of the August Note was conditional upon the funds being
    used for Metrozens project and the appellants receipt of shares in Metrozen; and
    (c) that the August Note should be rescinded on the basis of misrepresentations
    made by the respondent that the appellant would receive an equal number of
    shares in Metrozen to those received by the respondent.

[10]

The motion judge found that the consideration
    for the August Note was the advance of funds, which had undoubtedly taken place.
    He found that since the appellant had attended with the respondent at
    Metrozens lawyers office to make the advance, participated in all steps, and had
    witnessed the documents Metrozen provided in return, she could not contend that
    her obligations to the respondent under the August Note, signed three months
    later, were somehow conditional on the way the funds would be handled by Metrozen
    or its lawyer, or on Metrozen fulfilling its obligations to deliver shares. He
    noted that neither party had control over Metrozen performing its obligations
    and that neither the appellant nor the respondent received the shares to which
    they were entitled. And he found that the appellants contention that there had
    been a misrepresentation by the respondent that the shares she was to receive would
    be equal to the percentage to be received by the appellant was foreclosed by
    the terms of the August Note that set out the appellants percentage and by
    the appellants knowledge of what had been provided by Metrozen on May 31, 2016.

[11]

On appeal, the appellant advances three
    arguments:


(a)

the motion judge failed to consider all of the
    evidence, specifically the transcripts of the cross-examinations of the parties,
    and thereby committed an error of law;


(b)

the motion judge failed to give adequate reasons
    as to why he declined to make credibility findings; and


(c)

the motion judge made palpable and overriding
    errors of fact.

[12]

With respect to the first two arguments, the
    appellant primarily relies on the statements of the motion judge that the
    respondent had met her burden through the documents and that he could interpret
    the August Note based simply on the timeline without making an express credibility
    finding. The appellant urges us to find that the motion judge did not consider the
    cross-examinations of the parties that had been conducted, and that his reasons
    are inadequate to explain why he was declining to make a credibility finding.

[13]

We reject these arguments.

[14]

The motion judge was not required to mention
    each item of evidence; we do not conclude from the absence of an express reference
    to the cross-examinations that he did not consider them. For example, the
    appellant places reliance on a statement in the respondents cross-examination to
    the effect that the parties were to be equal partners in the transaction.
    However, the reference is clear that the respondent meant that both would be
    equally responsible for the sum advanced to Metrozen. The respondent went on to
    explain that she was to receive a greater percentage of shares because she was
    advancing the appellants portion for her. There is nothing in this exchange inconsistent
    with the trial judges findings or that would suggest he lost sight of, or did
    not consider, this evidence.

[15]

Nor are the reasons inadequate, as they permit
    meaningful appellate review:
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R.
    3, at paras. 30, 57. The motion judge explained why he could determine the
    issues without a credibility finding, namely that the documentary record was
    clear. Moreover, in addition to making the statements the appellant points to
    about why the case could be decided without an express credibility
    determination, the motion judge also indicated that the outcome would be no
    different if he decided the matter on the basis of credibility. He stated that,
    if I viewed it otherwise, the contemporaneous texts and emails from the [appellant]
    make the outcome clear and deprives her defences and evidence of credibility
    and [i]f I was not able to decide the case on the written record, I would have
    no hesitation rejecting the [appellants] evidence and arguments in face of her
    own documents, documented knowledge, and participation throughout. The motion
    judge gave detailed reasons for his conclusions.

[16]

Nor are we persuaded that the motion judge made
    any palpable and overriding errors of fact.

[17]

The divergence complained of by the appellant between
    the motion judges finding that she was promised a commission by Metrozen
    that was never paid, and the appellants evidence that she was offered a
    commission but never received it, is more superficial than real and could have no
    impact on the outcome.

[18]

We see no merit to the appellants complaint
    that the motion judge erred in finding there was a deal that the appellant was
    to receive three percent of the shares of Metrozen and the respondent seven
    percent. There was evidence to support that finding, including evidence of the
    respondent, documents that referenced the respondents seven percent that were witnessed
    by the appellant, and the reference to the appellants three percent in the August
    Note. The motion judge was alive, in making this finding, to the fact that
    Metrozens documents did not refer to the appellants three percent. But he appropriately
    considered that since the appellant participated in all the arrangements with
    Metrozen and witnessed documents, and since she signed the August Note, this
    did not detract from the appellants liability to the respondent, especially
    given that Metrozen misappropriated the advance and never delivered any shares
    to anyone.

[19]

Nor is there merit to the appellants complaint
    about the motion judges observation that by August 2019, the appellant was
    formulating her defence to payment of the amount due under the August Note. We
    see no error in that observation that could have affected the outcome. By that
    date, the appellant had ceased making payments under the August Note after having
    repeatedly acknowledged her liability to do so.

[20]

Accordingly, the appeal is dismissed.

[21]

If the parties are unable to agree on costs,
    they may make written submissions not exceeding three pages. The respondents
    submission should be delivered within ten days of the release of these reasons;
    the appellants submission should be delivered within ten days of those of the
    respondent.

G.R.
    Strathy C.J.O.

A. Harvison
    Young J.A.

B.
    Zarnett J.A.


