Jean Claude Rioux

Following a successful application to enforce a personal guarantee, the applicant sought costs on a substantial and full indemnity basis, relying on the terms of the guarantee and a Rule 49 offer to settle.

The respondents argued the requested amount was excessive for a simple application.

The court agreed the applicant was entitled to elevated costs but discounted the requested amount by approximately 10% to reflect a fair and reasonable quantum, awarding $145,000 inclusive of HST and disbursements.

The applicant sought to enforce a personal guarantee signed by the respondent for debts owed by his cinema company.

The respondent argued the guarantee was unenforceable due to an alleged oral representation that it would not be enforced, and alternatively, that it was unconscionable.

The court held that the matter was appropriate for an application under Rule 14, as the bald allegation of an oral representation lacked credibility and did not require a trial.

The court also rejected the unconscionability defence, finding no unequal bargaining power or improvident bargain.

Judgment was granted in favour of the applicant for the outstanding debt of over $2 million.