Beverley C. Jusko

The plaintiff appealed an Associate Judge's order dismissing its motion for a protective order over the production of its financial statements to the defendants, who are direct competitors.

The plaintiff sought to limit disclosure to 'counsel's eyes only', arguing the statements contained confidential and commercially sensitive information.

The Superior Court dismissed the appeal, finding the motion judge did not err in concluding the plaintiff failed to demonstrate a real and substantial risk of serious financial harm.

A motion to adduce fresh evidence was also dismissed as the proposed evidence would not be conclusive of the issue on appeal.

The Toronto-Dominion Bank and the defendants brought cross-motions for summary judgment.

The Bank sought judgment on outstanding loans and dismissal of a counterclaim.

The defendants counterclaimed for negligence, negligent misrepresentation, and breach of contract related to a Canada Small Business Financing Loan (CSBFL) and a Home Equity Line of Credit (HELOC).

The court found the Bank liable for breach of contract and negligence regarding the CSBFL for failing to fully fund the promised amount.

However, the defendants' claim concerning the HELOC's inflated appraisal was dismissed due to accord and satisfaction, as a new agreement was reached and the credit facility was continuously used.

Liability was determined, with damages to be assessed at a separate trial.