



COURT OF APPEAL FOR ONTARIO

CITATION: Ghasempoor v. ICapital Financial
    Services Corp., 2022 ONCA 60

DATE: 20220126

DOCKET: C68974

Pardu, Roberts and
    Miller JJ.A.

BETWEEN

Alireza Ghasempoor

Plaintiff/Defendant by Counterclaim
(Appellant)

and

ICapital
    Financial Services Corp.

Defendant/Plaintiff by Counterclaim
(Respondent)

and

Atciti
Corp.

Third Party
(Appellant)

Alireza
    Ghasempoor, acting in person and for the appellant, Atciti Corp.

Peter
    Smiley, for the respondent, iCapital Financial Services Corp.

Heard: January 21,
    2022 by video conference

On appeal from the order of Justice Susan Vella of the Superior
    Court of Justice, dated December 21, 2020,
with reasons
    reported at 2020 ONSC 8010.

REASONS FOR DECISION

Facts

[1]

The appellant Mr. Ghasempoor is the principal
    and president of the appellant Atciti, a web development services business. The
    respondent, iCapital, provides small business financing. In November 2018,
    Atciti and iCapital entered a Term Loan Agreement (TLA) by which iCapital
    agreed to advance $40,000 to Atciti and in return, Atciti agreed to repay the
    sum plus a $12,000 fee (i.e., $52,000 in total) by making daily payments in the
    amount of $216.27. The TLA provides that in the event of default, all of
    Atcitis indebtedness would become immediately due and payable at the option of
    iCapital. Mr. Ghasempoor personally guaranteed the TLA. In relation to the TLA,
    iCapital obtained a consumer report on Mr. Ghasempoor.

[2]

In February 2019, Atciti and iCapital entered
    into a new term loan agreement which was incorporated by reference into the TLA
    (the Renewal). Pursuant to the Renewal, the loan amount was increased to
    $70,000 to Atciti in exchange for a fee of $21,000 (i.e., $91,000 in total) to
    be paid in weekly installments of $1,750. This subsumed the amounts that were
    outstanding under the prior TLA. The guarantee remained in effect. Prior to
    entering into the Renewal, iCapital obtained a second consumer report on Mr.
    Ghasempoor from Equifax.

[3]

Atciti (through Mr. Ghasempoor) made the
    required weekly payments for five weeks. On April 4, 2019, Mr. Ghasempoor commenced
    the action, alleging that iCapital had damaged his personal credit and made an
    unreasonable payment demand. On the next day, April 5, 2019, Atciti failed to
    make the required payment. The outstanding sum owing under the TLA became due
    and payable.

[4]

iCapital counterclaimed against Mr. Ghasempoor
    and commenced a third-party claim against Atciti. It alleged that Atciti
    defaulted in its weekly payments required under the Renewal, which triggered an
    acceleration of the balance of the debt. This, in turn, triggered Mr.
    Ghasempoors personal guarantee of the loan.

Decision Below

[5]

The motion judge granted the respondents motion
    for summary judgment, dismissing Mr. Ghasempoors action against it and
    granting judgment against Mr. Ghasempoor (defendant by counterclaim) and Atciti
    Corp. (third party) in the amount of $82,250 on a joint and several liability
    basis.

[6]

The motion judge read Mr. Ghasempoors filings
    generously. She determined that his position was that: (a) by making a
    premature demand for payment, iCapital was deprived of seeking payment of the
    accelerated outstanding indebtedness under the Renewal and the Guarantee; (b)
    the outstanding indebtedness was $51,000, not $82,250, as was claimed by
    iCapital; and (c) iCapital obtained a second consumer report from Equifax which
    caused damage to Mr. Ghasempoors financial credit standing.

[7]

The motion judge rejected all three of these
    arguments. She found that Mr. Ghasempoor consented to iCapital obtaining a
    second credit report. She also noted that Mr. Ghasempoor did not quantify the
    damages he was seeking or adduce any evidence in support of his allegation that
    iCapitals request for a second consumer report was improper or gave rise to
    damages. She similarly noted that Mr. Ghasempoor did not adduce any evidence
    justifying his bald allegation that the outstanding indebtedness is only
    $51,000. Finally, she rejected Mr. Ghasempoors argument that a letter from
    iCapital dated April 1, 2019 amounted to a demand for payment; it was merely a
    statement of account showing the outstanding indebtedness.

Issues on Appeal

[8]

On a liberal reading of the appellants factum,
    notice of appeal and amended notice of appeal, it seems that they have raised
    four issues:

1.

Procedural fairness: The appellants were denied
    the ability to attend the motion hearing and were not properly served. The
    respondent and its lawyer acted improperly by making false statements to the
    court and by scheduling the motion on a date on which the appellants were not
    available.

2.

Summary judgment:

This claim is unfit for
    summary judgment and requires a trial with
viva voce
evidence.

3.

Outstanding loan amount:

The trial judge
    erred in finding that the outstanding balance was $82,250; it was $51,000.

4.

Fresh evidence:

The appellants have filed an affidavit dated
    May 7, 2021, which constitutes fresh evidence.

Procedural fairness

[9]

We are not persuaded that the proceeding was
    procedurally unfair to the appellants. They refused to attend cross
    examinations, even though they were required to by an agreed-upon timetable set
    in Civil Practice Court. After the date set for the argument of the
    respondents summary judgment motion was canceled because of the COVID
    pandemic, the respondent offered seven different dates for the argument of the
    motion, plus a date for cross examinations. The appellants did not respond and
    the date was set for August 21, 2020 to argue the motion. The endorsement also
    warned Mr. Ghasempoor that he was to advise of a date on which he could be
    cross examined and stipulated that if he failed to do so or to attend for cross
    examination, his affidavit could be struck.

[10]

This endorsement was provided to the appellants
    by registered mail and email.

[11]

On July 30, 2020, the respondent received
    correspondence from Mr. Ghasempoor, indicating that he would not attend the
    practice court hearing on July 28, 2020 and that he was unavailable to attend a
    summary judgment motion during the period of August 19-27 due to medical
    reasons.

[12]

The proposed fresh evidence indicates no more
    than that Mr. Ghasempoor had a dental appointment and was prescribed
    antibiotics. It does not establish that he was unable to attend and argue the
    motion, which was conducted virtually.

[13]

The motion judge carefully explained that she
    was satisfied Mr. Ghasempoor had had notice of the hearing. She waited for him
    to attend. Counsel for the Respondent called him and left a voice message. Mr.
    Ghasempoor did not appear or contact the court. There is no basis to interfere
    with her discretionary decision to hear the motion in his absence. She did not
    strike his affidavit but weighed it in evaluating the arguments made on the
    motion.

[14]

The appellants have made no attempt to set aside
    the judgment pursuant to rule 59.06(2) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194.

The merits

[15]

The motion judges decision on the merits is
    unassailable and we see no error in her conclusions. The action in debt was
    well suited for a summary judgment motion. She carefully considered Mr.
    Ghasempoors affidavit filed on the motion, despite his absence.

Fresh evidence

[16]

In so far as the proposed fresh evidence has any
    relevance to the merits of the summary judgment, that evidence was available
    with reasonable diligence and could have been provided to the summary judgment
    motion judge.

[17]

In so far as the proposed fresh evidence purports
    to explain why Mr. Ghasempoor did not attend the hearing, it does nothing to
    dispel the impression that the decision was tactical on his part, and is not
    credible in so far as it alleges misconduct in scheduling the motion on the
    respondents part.

[18]

The proposed fresh evidence is not admitted.

[19]

The appeal is accordingly dismissed. Costs are
    awarded to the respondent on the appeal in the sum of $3000.00.

G. Pardu
    J.A.

L.B.
    Roberts J.A.

B.W.
    Miller J.A.


