Bank of Montreal v. Zomparelli, 2008 ONCA 393

1Ms. Zomparelli appeals from the order of Justice Langdon of the Superior Court dated October 4, 2005 in which the learned judge, on a motion for summary judgment, dismissed Ms. Zomparelli’s counterclaim against the Bank of Montreal. Ms. Zomparelli raises a number of issues on appeal and, in effect, invites us to re-hear the original motion. At the end of the day, the only issue for us is whether the motion judge erred in concluding that there is no genuine issue for trial on the counterclaim.

2After a hearing over the course of two days, the motion judge conducted a thorough review of the record before him. In particular, he dealt with the allegation that the Bank of Montreal failed to deal with two principal payments of $25,000. He found one of those payments was credited by the Bank and that there was no evidence that the other payment was made. The motion judge dealt with the appellant’s request that the Bank repay her the $14,000 in costs related to the exercise of the power of sale. He indicated that another judge had already decided that the remedy lay in an assessment. Ms. Zomparelli advises that she has proceeded to the assessment. Whatever disagreement she may have with the outcome of that assessment is not before us in this appeal.

3At the outset of the argument, Ms. Zomparelli submitted that there was an inconsistency in Langdon J.’s disposition in that an identically worded cross-claim was allowed to proceed to trial by another judge in another motion. As there was no motion for summary judgment by the defendant in the cross-claim, we see no inconsistency with the decision of the motion judge in this case.

4Finally, in conclusion, we are not persuaded that the motion judge committed any error in concluding that there is no genuine issue for trial in respect of the counter-claim. The appeal is therefore dismissed.

Costs

5Costs of this appeal including the costs before Justice Sproat and the costs in the Divisional Court are fixed in the amount of $8,500 including disbursements and GST and are payable by the appellant to the respondent Bank.