J.C. Davies

The plaintiff bank brought a motion for summary judgment against the corporate defendant for defaulting on a commercial loan and against the personal defendants on their guarantees.

The defendants argued they did not understand the loan documents and that the Covid-19 pandemic frustrated the contract.

The court granted summary judgment, finding no evidence to support the defence of non est factum and holding that the pandemic did not alter the fundamental nature of the lending agreement, especially since the business was already failing prior to the pandemic.

The appellant appealed a judgment striking out his statement of claim.

The Court of Appeal upheld the motion judge's conclusion that the claims asserted were derivative claims properly assertable by the corporation, not by the appellant personally.

The court agreed that any possible personal claim, such as conspiracy, was so intertwined with the derivative claims that the entire pleading should be struck out.

The appeal was dismissed with costs.