2013 ONSC 6678, 2013 ONSC 6678

CITATION : Nahas v. Haddad , 2013 ONSC 6678 COURT FILE NO.: 10-47313 DATE: 2013/10/25 SUPERIOR COURT OF JUSTICE - ONTARIO RE: LEILA NAHAS, Plaintiff AND SAMIR HADDAD, Defendant BEFORE: Mr. Justice Robert N. Beaudoin COUNSEL: Ian Stauffer and Frank C. Tierney, Counsel, for the Plaintiff Lawrence Greenspon and Mary Simms, Counsel for the Defendant HEARD IN OTTAWA: October 24, 2013 AMENDED ENDORSEMENT This is an amendment to my Endorsement originally released October 24, 2013. The corrections appear at paras. 2 and 6. At para. 2, 3 rd line, the correction now reads: “… evidence concluded on October 23 , 2013 …”.

At para. 6, 1 st line, the correction now reads: “… he did not make an election …”. [ 1 ] In this action, the Plaintiff seeks a declaration that she was the co-owner with the Defendant of a Lotto 6/49 ticket that was the winning ticket in the Interprovincial Lottery Corporation draw on June 28, 2008 and damages for breach of contract. The winning ticket had a prize of $32 million. The Plaintiff seeks a one-third share. At the outset of trial, she limited her claim to $8 million but she did not otherwise amend the allegations in support of her claims.

In the alternative to the declaratory relief and the claim for breach of contract, the Plaintiff sought damages on the basis of breach of trust, resulting trust, constructive trust and unjust enrichment. She also sought punitive, exemplary and aggravated damages. [ 2 ] The Plaintiff served a jury notice and the trial of this action with a jury commenced with Jury selection on October 15, 2013. The trial commenced the following day and the hearing of the evidence concluded on October 23, 2013. A pre-charge conference was scheduled for this date.

In the interim, defence counsel raised the fact that the request for declaratory relief and for equitable remedies could not be dealt with by the Jury due to the provisions of section 108(2) of the Courts of Justice Act . The claims for exemplary, aggravated and punitive damages were abandoned. I determined there was no “air of reality” to the constructive trust and unjust enrichment claims. This left the breach of contract claim as the sole cause of action to be considered by the Jury.

The Defendant, then brought this motion for a non-suit on that claim. [ 3 ] The material facts pleaded in support of that claim are set out paras. 19 and 20 of the Statement of Claim as follows: 19. The Plaintiff submits that oral contract existed between the Plaintiff and the Defendant. The Plaintiff offered to split the costs of the ticket with the Defendant and his barber, and the Defendant accepted her offer. The Plaintiff contributed $1.00 to the cost of the $3.00 ticket. 20. The Plaintiff further submits that the terms of the oral contract, whether express or implied, were as follows:

a) that the Plaintiff, the Defendant, and the barber would each pay 1/3 of the price of the ticket for the June 28, 2008 Lotto 6/49 draw, that being $1.00 each;

b) that the Defendant would purchase the ticket on behalf of himself, the Plaintiff and the Defendant’s barber;

c) that the Defendant would treat the Plaintiff fairly, honestly, and in good faith; and

d) that the Defendant would proportionally share with the Plaintiff any winnings obtained by the ticket that he split with the Plaintiff. The Court’s jurisdiction to hear a Motion for a non-suit

[4] The Court of Appeal addressed this issue in FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd. 2007ONCA 425 at para. 12: Before addressing Robert Laba's submission, I want to say a few words about non-suit motions in civil non-jury trials. The term "non-suit" refers to a motion brought by the defendant at the close of the plaintiff's evidence to dismiss the action on the ground that theplaintiff has failed to make out a case for the defendant to answer. Neither the Courts of Justice Act, R.S.O. 1990, c.

C.43, nor the Rulesof Civil Procedure, R.R.O. 1990, Reg. 194, specifically provides for non-suit motions, but judges continue to have a recognizedjurisdiction to entertain these motions. [5] The Plaintiff relies on John Sopinka, Donald B. Housten & Melanie Sopinka, The Trial of an Action, 2d ed. (Toronto andVancouver: Butterworths Canada Ltd. 1998), which cited passages from McKenzie v. Bergin, [1937] O.W.N. 200 (C.A.).

That caseinvolved the ownership of a dog and at the close of the plaintiffs’ case, the learned trial judge, of his own volition, directed a non-suit onthe ground that the plaintiffs had not established the ownership of the dog. The Court of Appeal concluded that there was evidence ofownership, which should have been submitted to the jury, and the plaintiffs should not have been non-suited.

Rowell CJO statedat para. 9: 9 Possibly it would not be out of place, in view of the manner in which this action was disposed of at the trial, to suggest procedurewhich it would be desirable for Judges to follow in dealing with the question of a non-suit and which would result in a saving of expenseto both litigants and to the Counties, particularly in jury cases:

(1) The trial Judge should not, of his own motion, undertake to non-suit, but in all cases it should be left for counsel for the defendant tomove for a non-suit if he desires to do so.

(2) Even if counsel for the defendant moves for a non-suit, it would be wise and convenient if the trial Judge would reserve his decisionon the motion for non-suit and ask the defendant if he desires to put in evidence. If the defendant desires to put in evidence, the caseshould proceed and the jury's finding obtained. If the learned trial Judge then decided that the non-suit should be granted he coulddismiss the action, and, if appeal were taken, this Court would have all the facts before it, including the assessment of damages, and if itshould be of opinion that the non-suit should not have been granted the action could be finally disposed of.

(3) If, on the other hand, the defendant said he did not desire to put in any evidence but rested his case on the weakness of the plaintiff'scase, then the learned trial Judge could properly dispose of the motion for non-suit. [6] The Defendant admits that he did not make an election at the close of the Plaintiff’s case because at that time he did notrealize the effect of section 108(2) of the Courts of Justice Act on the plaintiff’s claims but that nothing precludes the motion beingbrought at this time. [7] At page 149 of the same text cited by the plaintiff, the author refers to this test from Arendale v.

Federal Building Corp. Ltd.(1962), (ON CA), 35 D.L.R. (2d) 202 at 205 (Ont. C.A.): The Defendant must satisfy the trial judge that the evidence is such that no jury, acting judicially, could find in favour of the plaintiff. [8] If there are finding of facts to be made, I agree that the better course is for the trial judge to leave these to the jury to decideand the trial judge should wait to rule on the motion. In this case however, the Defendant argues that even if all of evidence of theplaintiff was accepted as true there could be no finding of liability on the breach of contract claim.

Moreover, if an appeal were taken,that Court would have all of the evidence before it. I conclude that there is no basis for deferring my decision. The Breach of Contract Claim [9] The Defendant submits that even if all of the Plaintiff’s evidence is accepted as true, there was no evidence at trial that thebarber (Mike Detorre) had any knowledge of this alleged agreement at any time prior to the lottery win.

While the Plaintiff’s action wascommenced against the Defendant only, the essence of her claim “that the Plaintiff, the Defendant, and the barber would each pay 1/3 ofthe price of the ticket for the June 28, 2008 Lotto 6/49 draw, that being $1.00 each” required the agreement of the barber. There was no“meeting of the minds” to support the finding of a valid contract. The Defendant relies on Clancy v. Gough, [2011] A.J. No. 788 –another lottery case. There the court stated para. 50: 50 Parties to an agreement need to intend to contract. There must be a meeting of the minds.

The author Fridman writes: "[a]greementis at the basis of any legally enforceable contract. The absence of assent prevents the creation of a binding contract": G.H.L. Fridman,The Law of Contract in Canada, 5th ed. (Toronto: Thomson Carswell, 2006) at 13. [10] There was neither a pleading, nor any evidence that the Defendant acted as agent on behalf of the barber, nor was there anypleading or evidence that the Defendant had real, implied or ostensible authority to bind the barber to the contract.

There was no alternatepleading or any evidence that she had an agreement with the Defendant that he would give her a share of only his winnings if he bought awinning ticket with the barber. The legal basis for her claim continued to be a one third interest in the ticket’s value. If anything, thealleged agreement was conditional on the acceptance of the barber. In Scott and Sheppard v. Millar [1922] S.C.J. No. 73 theSaskatchewan Court of Appeal dealt with a contract that required the approval on a third party.

It held at para. 11: 11 Where a contract is entered into under these circumstances, it seems to me that the circumstances themselves furnish sufficientevidence that the performance of the contract was intended to be conditional upon the willingness of the wife to perform the part which,under the statute, she was obliged to perform to enable the agreement to be carried out. She being unwilling, the agreement, in myopinion, never became a valid and binding contract, and will not support an action for damages.

[ 11 ] In addition, the pleading and the evidence confirm that there was at best an agreement to enter into an agreement between the plaintiff, the Defendant and the barber and such an agreement is not enforceable at law. [1] [ 12 ] I agree with these submissions and conclude that there is no evidence that a jury, acting judicially, could find in favour on the plaintiff’s claim for breach of contract. [ 13 ] That being said, there is evidence to support of the plaintiff’s claim that the brother held a share of the ticket in trust for her. That claim cannot be tried by the jury and must be decided by me alone.

The jury is therefore dismissed and counsel may proceed to make arguments on the breach of trust and resulting trust claims. Mr. Justice Robert N. Beaudoin Date: October 25, 2013 CITATION : Nahas v. Haddad , 2013 ONSC 6678 COURT FILE NO.: 10-47313 DATE: 2013/10/25 ONTARIO SUPERIOR COURT OF JUSTICE RE: LEILA NAHAS, Plaintiff AND SAMIR HADDAD, Defendant BEFORE: Mr. Justice Robert N. Beaudoin COUNSEL: Ian Stauffer and Frank C. Tierney, Counsel, for the Plaintiff Lawrence Greenspon and Mary Simms, Counsel for the Defendant ENDORSEMENT Beaudoin J. Released: October 25, 2013 [1] G.H.L.

Fridman, The Law of Contract , 5th Ed. (Toronto: Thomson Carswell, 2006) at 79.