A man who paid $85,000 for 138 bottles of wine more than a year and a half ago says he never received them and lost his last attempt to get his money back in court.
A judgment posted online Monday outlines what the B.C. Supreme Court heard about the case earlier this month.
In November 2020, Moez Kassam, described as a “businessman and wine collector” who lives in Ontario, ordered the bottles of burgundy from a man named Brian Gunsten, who lives in Alberta.
HOW DID THE CASE END IN A BC COURT?
The case came before BC Judge Andrew Mayer because Kassam was trying to sue a company called Dream Wines Corporation, an Alberta company headquartered in North Vancouver. At the time of the transaction, Gunsten worked for this company.
Gunsten was also named in the lawsuit but never filed a response and did not attend the hearing, and the court was told he was “now bankrupt”, Mayer said.
Kassam argued, according to court documents, that Dream Wines should be held “vicariously liable” for its employee’s actions and ordered to pay him $85,000 plus interest and court costs.
It was an argument the judge flatly rejected, siding with the company and granting its request to dismiss the claim.
THE COMPANY’S ARGUMENT
The company argued that not only did it have no involvement in the contract between Kassam and Gunsten, but that the agreement itself was so “tainted with illegality” that its application would be contrary to “public order”. , summed up the judge. In support of this claim, the company pointed out that there was no GST or PST on the invoice and that the wine would have been shipped from one province to another in defiance of Ontario legislation on the alcohol control.
The company also told the court that Gunsten was fired in 2021 because he “moonlighted” doing this type of side selling.
Kassam’s attempts to seek reimbursement directly from Gunsten continued in a series of text messages that occurred after Gunsten was fired, which Kassam admitted he was aware of. Two payments – of $1,500 and $200 respectively – were also accepted by Kassam as partial repayment.
“Mr. Kassam did not contact Dream Wines President Eric Tetrault until May 12, 2021 – approximately five months after his company passed $85,000 to Mr. Gunsten,” the court ruling reads.
Kassam told the court that Gunsten communicated with him using his work email address, arguing that it implicated the company in the deal. Furthermore, he said “subjectively believed he was entering into a contract with Dream Wines,” the court heard.
The judge also reviewed an earlier deal Kassam and Gunsten made in which 18 bottles of wine were sold for $50,000. This sale was completed and the court noted that the payment was wired to Gunsten’s personal bank account.
The invoice in that case was issued by Gunsten and – like the transaction reviewed by the court – did not include federal or provincial sales tax, which the judge said indicated it was “off the books.”
Additional evidence presented by the company showed that it did not sell wine directly to individuals and that none of the bottles Kassam had purchased or attempted to purchase had ever been offered for sale on its website.
WHAT HAPPENED TO THE WINE?
Kassam also alleged that Gunsten, and by extension the company, had engaged in a “conversion”.
“(It) occurs when a person without authority or permission wrongfully interferes with the property of another, such as taking their property,” the judge explained.
“To possess another person’s funds, without that person’s authorization, and without such possession being in accordance with a legal right, is tantamount to a conversion.”
However, since Kassam entered into the contract voluntarily and because there was no evidence that Gunsten used the money for his own gain or withheld the wine, the judge denied this request.
“The documentary evidence suggests that Mr. Gunsten paid for the wine using the $85,000 provided by Anson Advisors Inc., but the wine shipment was damaged and returned. The evidence also suggests that Mr. Gunsten was seeking the return of the $85,000 that would be refunded. This never happened,” the decision read.