Paz Diamonds Israel v. R.M. Diamonds et al., (1996) 21 O.T.C. 241 (GD)

• Judge: Dilks, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: December 20, 1996
• Jurisdiction: Ontario
• Citations: (1996), 21 O.T.C. 241 (GD)

Paz Diamonds Israel v. RM Diamonds (1996), 21 O.T.C. 241 (GD)

MLB headnote and full text

Paz Diamonds Israel (plaintiff) v. R.M. Diamonds, Roncador Holdings Limited, R. & M. Diamonds, Peter Shoniker in his capacity as Executor of the Estate of Roni Ishaik, Ezra Ishaik, Michal Tillman and Nahum Eizicovics (defendants)

(No. 94-CQ-55453)

Indexed As: Paz Diamonds Israel v. R.M. Diamonds et al.

Ontario Court of Justice

General Division

Dilks, J.

December 20, 1996.

Summary:

The plaintiff sued the defendants Roncador, R.M. and R & M for the balance owing for goods allegedly sold and delivered, as well as on promissory notes. The claims against R. Ishaik's estate, E. Ishaik and Tillman were based on general continuing guarantees and certain specific guarantees. The claim against Eizicovics was based on specific guarantees. The defendants R.M. and the R. Ishaik estate counterclaimed for an accounting. The defendants E. Ishaik and Tillman cross-claimed against Eizicovics for indemnity. Eizicovics also cross-claimed against the R. Ishaik estate for indemnity.

The plaintiff applied under rule 20 for summary judgment against all defendants, who opposed the motion. The defendants E. Ishaik and Tillman applied for judgment dismissing the plaintiff's action against them. The plaintiff also sought to dismiss the counterclaim against it.

The Ontario Court (General Division), after discussing the test for application of summary judgment, allowed the plaintiff's application in part. The court ruled that the matter should go to trial only with respect to a single issue, namely, whether there was a material variation of the contract by the plaintiff without the consent of Eizicovics. Otherwise, the court found that there was no triable issue.

Practice - Topic 5702

Judgments and orders - Summary judgments - When available - See paragraphs 13 to 14.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - See paragraphs 16 to 75.

Cases Noticed:

1061590 Ontario Ltd. v. Ontario Jockey Club et al. (1995), 77 O.A.C. 196; 21 O.R.(3d) 547 (C.A.), refd to. [para. 13].

Ungerman (Irving) Ltd. et al. v. Galanis and Haut (1991), 50 O.A.C. 176; 4 O.R.(3d) 545; 83 D.L.R.(4th) 734 (C.A.), refd to. [para. 14].

Royal Bank of Canada v. Feldman (1995), 23 O.R.(3d) 798 (Gen. Div.), refd to. [para. 14].

Rogers Cable T.V. Ltd. v. 373041 Ontario Ltd. (1994), 22 O.R.(3d) 25 (Gen. Div.), refd to. [para. 14].

Del Grande v. Toronto-Dominion Bank (1995), 21 B.L.R.(2d) 220 (Ont. Gen. Div.), consd. [para. 31].

Royal Bank of Canada v. Dickson (1975), 8 N.S.R.(2d) 342; 66 D.L.R.(3d) 242 (C.A.), affd. [1976] 2 S.C.R. 834; 7 N.R. 262; 13 N.S.R.(2d) 672; 9 A.P.R. 672; 66 D.L.R.(3d) 253, refd to. [para. 60].

Ruthenian Farmers Elevator Co. v. Hrycak, [1924] 3 D.L.R. 402 (Sask. C.A.), refd to. [para. 65].

Toronto-Dominion Bank v. Calderbank (1983), 3 D.L.R.(4th) 715 (B.C.C.A.), refd to. [para. 65].

Bank of Montreal v. Wilder, [1986] 2 S.C.R. 551; 70 N.R. 341; 32 D.L.R.(4th) 9, refd to. [para. 71].

Statutes Noticed:

Civil Procedure Rules (Ont.), rule 20 [para. 1].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed.), vol. 20, para. 141 [para. 28].

McGuinness, The Law of Guarantee (1986), pp. 103, 104 [para. 27]; 165 [para. 60].

Counsel:

H.C.G. Underwood and Geoff Hall, for the plaintiff;

I. Marks and David Taub, for the defendants, Ezra Ishaik and Michal Tillman;

B.A. Edson, for the defendant, Nahum Eizicovics;

R.W. Wilson, for the defendants, Peter Shoniker in his capacity as Executor of the Estate of Roni Ishaik, R.M. Diamonds, Roncador Holdings Limited and R. & M. Diamonds.

This case was heard on September 26, 27 and 30, 1996, before Dilks, J., of the Ontario Court (General Division), who released the following judgment on December 20, 1996.