



COURT OF APPEAL FOR ONTARIO

CITATION: Gordashevskiy v. Aharon, 2019 ONCA 297

DATE: 20190415

DOCKET: C65896

Lauwers, Pardu and Nordheimer JJ.A.

BETWEEN

Vadim Gordashevskiy

Plaintiff (Appellant)

and

Ilya Aharon; Agora Holdings Inc.

Defendants (Respondents)

Brian P. Pilley, for the appellant

Ron Aisenberg, for the respondents

Heard: April 10, 2019

On appeal from the
    judgment of Justice Jamie Trimble of the Superior Court of Justice, dated July
    25, 2018.

REASONS FOR DECISION

[1]

On the record before us it appears to be clear that the respondent and
    purported borrower Agora Holdings Inc. received a transfer of $100,000 from the
    appellant on the security of the promissory note guaranteed by the respondent,
    Ilya Aharon.

[2]

The motion judge dismissed the appellants motion for summary judgment
    on the promissory note and guarantee, and then granted summary judgment in
    favour of the respondents.

[3]

There is a clear conflict on the evidence of the appellant lender, the guarantor,
    Mr. Aharon, and the purported principal of Agora Holdings Inc., Ilya Kaplan. In
    his affidavit, Mr. Gordashevskiy says:

[Ilya Aharon] advised me with
    respect to one of these ventures, being Agora Holdings Inc. This was a private
    Ontario company which he controlled according to the information that he gave
    me. He stated that he needed start-up capital for this business.

[4]

Mr. Aharon denies the evidence of Mr. Gordashevskiy: I did not tell the
    Plaintiff that I controlled Agora. Mr. Kaplan says:

I was the sole incorporator of Agora. I have always been its
    sole director. Agora has no officers or employees.

The promissory notes signed
    purportedly on behalf of Agora by the Defendant Ilya Aharon (Aharon) were
    signed without authorization by Agora.

[5]

The motion judge notes simply: The facts are not in dispute. The
    motion judge does not advert to this plain conflict in the evidence, a conflict
    that should have been resolved at a minimum by way of a mini trial under the
    summary judgment rules. He does not explain the basis on which he accepted the
    evidence of Mr. Aharon. While the motion judge correctly instructed himself on
    the test for summary judgment, he did not apply it by turning his mind to
    whether the credibility issues could be resolved without
viva voce
evidence.

[6]

The endorsement contains what appears to have become boiler-plate language
    that we often see in summary judgment decisions:

In this case, the parties have
    agreed that all of the evidence that I need to make the necessary findings of
    fact, to apply the law to the facts, and to achieve a fair and just
    adjudication of the case on the merits, is before me. Therefore, inferentially,
    neither party suggests that any additional steps are necessary.

With respect, the assessment of whether other steps
    are required must be undertaken by the motion judge. Accepting the assurance of
    the parties is not the end of the inquiry. It is not open to a motion judge to
    simply prefer one affidavit over another in the absence of explanatory reasons
    for the preference that permit appellate review. That is not this case.

[7]

We agree with the motion judge that the appellants motion for summary
    judgment should be dismissed, although not for the reasons that he gave. Further,
    though, in our view it was not appropriate on this record to dismiss the action
    given the factual dispute. The judgment is set aside, without prejudice to the
    rights of either party to bring a motion for summary judgment on proper
    material.

[8]

We would note, in passing, that the appellant would be well advised to
    take the motion judges good advice, and amend the statement of claim so that
    it fully discloses the numerous causes of action the appellant identified in
    his factum and motion materials, but did not assert in his sparse pleading.

[9]

The parties agreed that costs on the appeal would be fixed at $11,000
    payable by the respondents to the appellant. Given the outcome, we would not
    change the costs award for the summary judgment motion.

P. Lauwers J.A.

G. Pardu J.A.

I.V.B. Nordheimer
    J.A.


