This omission establishes the evidentiary presumption that Michael's testimony would have acted to the detriment of Max (as stated in the case of the Finance Bank, mentioned above).
- Indeed, the franchisees could also have summoned Mr. Shimshon's brother to testify, as Max noted in its summaries. However, they assessed that they were not required to do so, taking into account the division of the evidentiary burdens at hand. They therefore took a risk, but it turned out that their assessment was informed, and the evidence on which Max relied was not enough.
Max also took the risk of relying on the investigator's testimony alone, and not to summon additional witnesses. This risk was weighty in view of the problems in the caseand the issues that I have discussed. This risk was realized since the prosecutionand the investigator's committees would not be able to bear the justification of the cancellation. The plaintiff's refusal to summon the additional witnesses, who could shed light on the dispute, therefore stands in its way.
It is not possible to rely on Mr. Haimovitz's statement of claim from November 2017
- During the investigation of the claims before me, Mr. Haimovitz's statement of claim from November 2017 was presented. This is a statement of claim (in labor dispute 44899-11-17) that he filed with the Haifa Regional Labor Court, inter alia against Mr. Max, andB.W. petitioned for declaratory relief and monetary compensation for his unlawful dismissal, according to him (Appendix 9 to the statement of defense in the franchise suit).
- It appears that the parties in the proceeding before me wish to find different insights in this document. Can it be seen as Mr. Max's exposure to allegations regarding Mr. Shimshon's investment in a Superstock company back in 2017? Insofar as this is the case, it was argued that this can establish a delay in the issuance of the cancellation notice, since any cancellation must be made within a reasonable time after the discovery of the cause of cancellation. Is it possible, on the other hand, to find support for the correctness of the claim that Mr. Shimshon did indeed invest in the competing company?
- After review, I do not believe that the said statement of claim can be useful in clarifying the dispute before me, or have an impact on it.
An examination of it (ibid., at paragraphs 34-37) shows that Mr. Haimovich was a friend of Mr. Shimshon as well as of Mr. Max, and had business activity with both of them. According to the claim in the statement of claim, when Mr. Max learned that Mr. Shimshon's brother had purchased shares in the Superstock chain, he claimed that there had been a severe crisis of trust between him and Mr. Shimshon, and that Mr. Haimovich should choose a side between them. When he refused to deny his relationship with Mr. Shimshon, he was fired.