DATE: 20010606 DOCKET: C35237
COURT OF APPEAL FOR ONTARIO
RE:
BANK OF MONTREAL (Respondent/Plaintiff, Defendant by counterclaim) –and– FOUR ISLAND FARMS INC., in trust, DENNIS QUESNEL, DALE QUESNEL, GENE QUESNEL, DAVID QUESNEL, DEBORAH QUESNEL and LYNDA QUESNEL (Appellants/Defendants, Plaintiffs by counterclaim)
BEFORE:
OSBORNE A.C.J.O., CATZMAN and CHARRON JJ.A.
COUNSEL:
Sean E. Cumming, for the appellants (defendants/plaintiffs by counterclaim)m
P. Roderick Brooks, for the respondent (plaintiff/defendant by counterclaim)
HEARD:
June 4, 2001
RELEASED ORALLY:
June 4, 2001
On appeal from the judgment of Justice Douglas J. Cunningham dated August 29, 2000.
E N D O R S E M E N T
[1] The appellants appeal from the judgment of Cunningham J. granting summary judgment in favour of the respondent on its claim and dismissing the appellants’ counterclaim.
[2] The appeal before us was founded on the proposition, stated by Mr. Cumming at the outset of his argument, that the respondent was under a duty, which it breached, not to misrepresent to the appellants its willingness to review their existing loans and to advance additional funds to complete their proposed subdivision. Assuming the validity of that proposition as a matter of law, the evidence before Cunningham J. did not disclose any such misrepresentation, express or implied, and thus failed to make out the factual foundation for the legal proposition which the appellants advance.
[3] In our view, Cunningham J. properly held that there was no genuine issue for trial, and the appeal is dismissed with costs. On behalf of the respondent, Mr. Brooks sought an order for costs on a solicitor-and-client basis, as provided in the mortgage given by the appellants. Having regard to the fact that the thrust of the appeal was directed to the appellants’ counterclaim rather than the respondent’s claim, we would award costs on a party-and-party basis rather than the basis sought by Mr. Brooks.
[4] Paragraph 4 of the judgment of Cunningham J. stayed the order for possession in favour of the respondent “pending appeal if any”. For greater certainty, we direct that, the appeal having now been heard and decided, the stay to which that paragraph refers is removed.
Signed: “C.A. Osborne A.C.J.O.” “M.A. Catzman J.A.” “Louise Charron J.A.”```