Meridian OneCap Credit Corp v Nikos Directional Inc, 2021 ABQB 362

Court of Queen’s Bench of Alberta Citation: Meridian OneCap Credit Corp v Nikos Directional Inc, 2021 ABQB 362 Date: 20210507 Docket: 1903 11649 Registry: Edmonton Between: Meridian OnceCap Credit Corp. Plaintiff - and - Nikos Directional Inc and Nicolae Neacsu Defendants _______________________________________________________ Reasons for Decision of W.S. Schlosser , Master of the Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This is an application for

Summary Judgment brought in morning chambers. It was adjourned once for cross-examination on affidavits. [ 2 ] The sole issue is the sufficiency of the Plaintiff’s evidence. After a review of the evidence and the very able submissions of counsel, I refused the application, with these Reasons to follow. What’s Wrong With the Evidence? [ 3 ] As noted, this is a

Summary Judgment application. The evidence in support of it is required to be first-hand, personal knowledge (r 13.18(1)(a),(3)). [ 4 ] The Plaintiff relies on two affidavits sworn in BC by a BC witness: one commissioned and one notarized. For the purposes of these Reasons I am going to treat both of these affidavits as if they were proper evidence in this province (see Notaries and Commissioners Act , SA 2013, c N-5.5 , ss 4( 3 ), 16(1)(3) and the Alberta Evidence Act , RSA 2000, c A-18 , s 47(1)). By that I mean I am

going to treat the affidavit that was commissioned in BC as if it had been notarized. [ 5 ] In both applications, the Deponent swears that he is an employee of the Plaintiff, Meridian OneCap Credit Corporation, though he does not disclose his position, or whether this evidence should bind the company (see r r 5.17(1)(

b) and r 5.29 - if this were a questioning for discovery). The evidence about his position with the company was coaxed out of him on cross-examination. [ 6 ] The lawsuit concerns the lease of two pieces of equipment: a Thermo King Tandem Reefer and a Comfort Pro Auxiliary Power Unit. The first was leased in March 2018; the second in July of that year. [ 7 ] Both leases are made with First Capital Leasing Ltd of Calgary.

Meridian’s employee’s evidence indicates that the lessee is Nikos Directional Inc and Nicolae Neacsu (personally) with double signatures; making both of them liable. [ 8 ] Paragraph 10 of this witness’s earlier affidavit, and paragraph 21 of the later affidavit, indicate that the leases were assigned to Meridian OneCap; the now Plaintiff. As noted, the deponent swears that he is an employee of the assignee and swears he has “personal knowledge” of the matters sworn to. The witness does not explain how he obtained this personal knowledge, or, in particular, how he obtained personal knowledge of the assignment.

None is in evidence. In fact, the witness’s own evidence affirms he has no personal knowledge whatsoever except, possibly, some personal conversations he had with the individual defendant during the collection process. [ 9 ] There was a wide ranging ‘kitchen sink’- style defence filed on behalf of the Defendants by previous counsel. Now, the only real defence appears to be that it is the corporate Defendant, not the individual Defendant, that is liable (paras 2, 3). [ 10 ] The individual Defendant swears in response: … 15.

At the time of signing for both leases neither the Plaintiff nor First Capital Leasing advised that I would be personal [sic] liable for any amounts owing on the First Lease and/or Second Lease. 16. The copies of the First Lease provided by the Plaintiff in Exhibit A from the Affidavit of Daryl Sherwood, appear to be different from the copy that is my possession.

The copy of the First Lease in my possession [marked as Exhibit A] is only signed on behalf of NIKOS DIRECTIONAL and not myself personally. … [ 11 ] The individual Defendant also exhibits: a “Confirmation of Lease Agreement” dated March 2018, that appears to show only the corporate Defendant as lessee, together with a copy of an executed Lease Agreement for the Tandem Reefer showing only the company as the lessee. These documents are not consistent with the documents tendered by the Plaintiff in support of this application. Who is Liable? [ 12 ] The central issue is who is liable?

The company, the individual or both? [ 13 ] Meridian OneCap’s “employee” was examined on his affidavit. He said he was employed as a late-stage collector for the company. If I might summarize his evidence, he stated that he was not involved with these leases, or any others prior to default. He acknowledged that First Capital is an outside company that assigned the lease to Meridian OneCap; though no particulars were given. We do not know whether the assignment was in writing or not or, as noted, how this witness has personal knowledge of it.

If the assignment is not proved, this Plaintiff has no right to sue. [ 14 ] This witness has no idea who signed the underlying leases and cannot identify them in any formal sense. He has no idea who the signature on the ‘Confirmation of Lease’ attached to the Defendant’s affidavit is, he does not know of any circumstances leading up to the signing of this document.

The witness thinks (speculates) that the document tendered by the Defendants was an agreement that was not put into effect but no basis for this self-serving evidence is given. [ 15 ] The witness concedes that he was only aware of the lease document naming only the corporate Defendant as lessee through the court proceedings. He has no explanation why there might be two (different but apparently regular) copies of the leases.

There was an undertaking given to produce the original but it could not be found. [ 16 ] There is also a dispute about whether the second chattel had in fact been delivered up to the auctioneer in the seizure process. The witness says it was not and this is based on hearsay from the auctioneer. Paragraph 19 of the Defendant’s affidavit says: 19. On or about November 24, 2020 I delivered the First Chattel and Second Chattel to Graham Auctions located at 4321 84 St NE, Calgary, Alberta. A Bailiff retained by the Plaintiff was present to receive both chattels.

The Second Chattel was placed inside the back of the Trailer which made up the First Chattel. The Bailiff inspected the First Chattel and took various pictures. When asked If I should open the Trailer so the Bailiff could observe the location of the Second Chattel, the Bailiff refused and continued his paperwork. (emphasis added) [ 17 ] The gist of all of this is that this witness who claims to have personal knowledge is hardly a witness in any ordinary sense and is probably better described as a bystander, late on the scene.

His evidence really doesn’t prove anything; or at least any of the central points in issue. Most of the affidavit repeats the terms of the documents that are disputed. The witness has no first-hand or any personal knowledge of any events, except possibly discussions with the individual Defendant during the collection process. The witness knows nothing about the leases. There is nothing that would assure the Court that this witness’s evidence is fit and proper to bind the corporate

Plaintiff. There is no evidence of any kind that would permit the documents to be received as business records. And for How Much? [ 18 ] As noted, the central issue is who is liable? The next issue is, for how much? This takes us to the dispute about whether the second chattel had been surrendered to the auctioneer. [ 19 ] I concede that I would have been willing to give judgment against the corporate Defendant based on the Defendant’s affidavit and formal admissions in the Statement of Defence.

However, there is still an unresolved issue about whether the second chattel had been delivered up and what if any credit should be given for it. In this respect, the Defendant swears positively that the second chattel had been surrendered to the auctioneer. This is as against the Plaintiff’s evidence under cross-examination that he heard from the auctioneer that it had not. [ 20 ] I need not cite the leading cases on

Summary Judgment as authority for this evidence being insufficient to support a

Summary Judgment Decision. This one’s at least a couple of bales short of a load. [ 21 ] The application is dismissed. Heard on the 29 th day of April, 2021. Dated at the City of Edmonton, Alberta this 7 th day of May, 2021. W.S. Schlosser M.C.Q.B.A.