



COURT OF APPEAL FOR ONTARIO

CITATION: Leslie v. Encanto Potash Trading
    Corporation, 2021 ONCA 464

DATE: 20210625

DOCKET: C68494

Doherty, Benotto and Thorburn
    JJ.A.

BETWEEN

Erica Leslie and Grip Fast
    Strategies Corp.

Appellants (Plaintiffs/Respondents by
    Cross-Appeal)

and

Encanto Potash Trading
    Corporation and Encanto Potash Corp. and Stavros Daskos

Respondents (Defendants/Appellants by
    Cross-Appeal)

Stéphane Hutt and Maxime Desforges, for
    the appellants

John E. MacDonell, for the respondents

Heard: June 21, 2021

On appeal from the order of Justice
    Stanley J. Kershman of the Superior Court of Justice, dated April 23, 2020.

REASONS FOR DECISION

[1]

The appellant, Erica Leslie, through her
    company, the appellant Grip Fast Strategies Corp. (Grip Fast) provided
    consulting services to the respondent, Encanto Potash Corp. (Encanto). The
    arrangement went well for a time, but Ms. Leslie alleges Encanto stopped paying
    her invoices. The appellants also allege Encanto reneged on a stock option
    promised to Ms. Leslie. Ms. Leslie and Grip Fast sued Encanto, an affiliated
    company, Encanto Potash Trading Corp. (EPTC) and Stavros Daskos, the C.E.O.
    of Encanto.

[2]

All of the defendants moved for summary judgment.
    The motion judge allowed the motion brought by Mr. Daskos and EPTC He dismissed
    the action against them. The motion judge dismissed the motion brought by
    Encanto and directed the matter proceed to trial.

[3]

Encanto moved successfully for security for
    costs as against the appellant, Grip Fast.

[4]

Ms. Leslie and Grip Fast appeal from the order
    dismissing the action against Mr. Daskos. The appellant, Grip Fast, also appeals
    the order for security for costs. There is no appeal from the dismissal of the
    action against EPTC.

[5]

Encanto cross-appeals from the refusal of the
    motion judge to grant summary judgment dismissing the claim against Encanto.

[6]

The order dismissing the action against Mr. Daskos
    is a final order. Ms. Leslie and Grip Fast have a right of appeal from that
    dismissal to this court. The order requiring Grip Fast to post security for
    costs is interlocutory, as is the order dismissing Encantos motion for summary
    judgment.

[7]

Interlocutory orders are not appealable in the
    normal course to this court. All parties to the appeal, however, submit the
    appeals from the interlocutory orders are so interrelated with the issues
    arising on the appeal from the dismissal of the action against Mr. Daskos that
    this court should exercise its jurisdiction under s. 6(2) of the
Courts of
    Justice Act
, R.S.O. 1990, c.43 and
    hear the interlocutory appeals
.

[8]

After considering counsels submissions, the
    court decided to first hear argument on the merits of the appeal from the
    dismissal of the action against Mr. Daskos. After hearing those submissions,
    the court concluded that the appeal, as against Mr. Daskos, failed.

[9]

The court advised counsel that the dismissal of
    the appeal as it related to the action against Mr. Daskos did not require the
    determination of any issues that were integral to the other appeals. There was
    therefore no basis upon which to invoke the courts jurisdiction under s. 6(2)
    of the
Courts of Justice Act
in
    respect of the appeal by Grip Fast, or the cross-appeal by
Encanto.

[10]

The appeal by Grip Fast against the order for
    security for costs and the cross-appeal by Encanto from the refusal to dismiss
    the action against Encanto are quashed as interlocutory, without prejudice to
    the parties seeking appellate review in the appropriate forum, if so advised.

[11]

We turn now to our reasons for dismissing the
    appeal from the dismissal of the action against Mr. Daskos. The appellants
    submit, apart from an affidavit which in no way addressed the substance of the
    claims, the defendants filed no evidence on the summary judgment motion. They
    submit, absent any such evidence, Mr. Daskos could not possibly meet his
    evidentiary burden on the summary judgment motion and the motion should have
    been dismissed on that basis.

[12]

The motion judge was obliged to consider the
    motion on the material the parties chose to put in front of him. Mr. Daskos
    chose not to file an affidavit. Ms. Leslie filed an affidavit. Neither side
    cross-examined and neither side sought to augment the written record through
    the examination of witnesses under r. 39.03.

[13]

The evidence and documents before the motion judge
    indicated that Ms. Leslie dealt with Mr. Daskos in his capacity as C.E.O. of
    her client, Encanto. All of the documentary evidence relevant to the contract spoke
    of an agreement between Ms. Leslie and Encanto. That material included the
    actual terms of the written document, the many invoices provided by Ms. Leslie
    over several months, various filings by Ms. Leslie with the federal government,
    communications between Ms. Leslie and Encanto over the course of the
    relationship, and the demand letter sent on Ms. Leslies behalf in July 2018, demanding
    payment on outstanding invoices.

[14]

The motion judge concluded, based on the
    documentary evidence and Ms. Leslies affidavit, that there could be no genuine
    issue as to the identity of the contracting parties. There is no reason to
    interfere with that conclusion. It is fully supported in the record.

[15]

The pleadings also made a bald allegation that Mr.
    Daskos had provided a personal guarantee in respect of any consulting fees owed
    to Ms. Leslie. Ms. Leslies affidavit at one point refers to Mr. Daskos assuring
    her he would honour his guarantee to pay. No details are provided in the
    pleadings or in the affidavit. Nothing else in the affidavit or the exhibits to
    the affidavit lends any support to the claim that Mr. Daskos personally
    guaranteed the debt. Certainly, the documents memorializing the agreement, and
    Ms. Leslies attempts to secure payment on the invoices for services provided,
    offer no support for the assertion that Mr. Daskos personally guaranteed the
    debt. It was open to the motion judge to find there was no triable issue in
    respect of the alleged guarantee.

[16]

In addition to the claim based on the alleged
    personal guarantee of Mr. Daskos, the appellants made other claims against Mr.
    Daskos in the amended Statement of Claim. The motion judge did not address
    these claims in his reasons, although he did engage counsel in respect of the
    merits of these claims during oral argument. It is clear from those comments,
    that he was unable to discern any evidentiary basis for the personal claims
    against Mr. Daskos.

[17]

Some of the claims fail at the pleadings level.
    For example, the oppression claim and the claim to pierce the corporate veil
    and render Mr. Daskos personally responsible for Encantos conduct are simply
    unsupported by anything in the pleadings, much less in the evidence.

[18]

Other claims are entirely unsupported by the
    evidence. There is no evidence Mr. Daskos misrepresented his background to Ms.
    Leslie or, that if he did, Ms. Leslie could reasonably rely on any
    representation made by Mr. Daskos as to the enforceability of the agreement
    with Encanto. Similarly, with respect to the claim Mr. Daskos induced a breach
    of contract by Encanto, there was no basis to hold that anything done by him in
    respect of the non-payment of the invoices was done in any capacity other than
    as C.E.O. of Encanto.

[19]

The motion judge properly dismissed the claim
    against Mr. Daskos.

[20]

The appeal from the dismissal of the
    claim against Mr. Daskos is dismissed. Costs to the respondents, Encanto and
    Mr. Daskos, in the total amount of $8,000, inclusive of disbursements and
    relevant taxes.


Doherty J.A.

M.L. Benotto J.A.

J.A. Thorburn J.A.


