COURT OF APPEAL FOR ONTARIO
Sossin, Monahan and Osborne JJ.A.
BETWEEN
Bank of Montreal
Plaintiff
(Respondent)
and
Ilyes Saidani and Peter Harvey*
Defendants
(Appellant*)
Zohar Levy, for the appellant
James S. Quigley and Jakob Bogacki, for the respondent
Heard: July 16, 2026
On appeal from the judgment of Justice M. Claire Wilkinson of the Superior Court of Justice, dated April 11, 2025.
REASONS FOR DECISION
Overview
1This appeal arises from a summary judgment motion granted against the appellant, Peter Harvey, and his co-defendant, Mr. Saidani. The respondent, BMO, sought to enforce a guarantee given by Mr. Harvey on an overdraft credit facility on behalf of Sirius Power Corp (“Sirius”). The motion judge ordered a mini-trial due to conflicting affidavit evidence provided by the parties. For the reasons that follow, we dismiss the appeal.
Background
2Mr. Saidani was Sirius’ sole director and shareholder. Mr. Harvey provided independent contractor services to Sirius but stated that Mr. Saidani had promised him additional executive titles. Mr. Harvey held himself out to BMO as Vice President and Chief Operating Officer of Sirius.
3The main factual issue in dispute at the motion was what occurred at a meeting on November 12, 2021, between Mr. Harvey, Mr. Saidani, another employee of Sirius, and Mr. Cao, a BMO loan officer. They discussed BMO’s proposal for lending funds to Sirius. Mr. Cao informed the others that BMO would require a co-signor for the credit facilities. Mr. Cao testified that Mr. Harvey was open to doing so and that he informed Mr. Harvey that BMO would require him to receive independent legal advice.
4Mr. Harvey claimed that he stated that he would agree to be the guarantor only if: (1) he was granted full signing authority and control over the overdraft line of credit, including pre-approval for withdrawals exceeding $5,000 and (2) he was immediately given access to the Sirius bank account through BMO’s online account management system. The motion judge found that Mr. Cao agreed to Mr. Harvey’s request to make him a co-signor on the account and to provide him with online access to the account. The motion judge also found that Mr. Cao told Mr. Harvey that he would be immediately contacted to take care of these steps. Additionally, Mr. Cao informed Mr. Harvey that the loan agreement and the guarantee were standard form documents that could not be changed. The written guarantee confirmed that the guarantee was without conditions. Mr. Harvey signed both documents. He also provided a Certificate of Independent Legal Advice.
5On November 18, 2021, Mr. Cao informed Mr. Harvey that the financing for Sirius was available. Mr. Harvey asked about being added as a signor to the account. Mr. Cao informed Mr. Harvey that BMO needed a letter from Mr. Saidani consenting to this addition. Mr. Cao sent an email to Mr. Saidani and Mr. Harvey that day, confirming that a client services officer, Ms. Green, would handle the addition of Mr. Harvey as a signatory to the account.
6Mr. Harvey immediately sent an email to Ms. Green asking to grant him account authorization and sign-in access. Ms. Green responded asking for documentation and personal identification. The next day, Mr. Saidani sent a letter to Ms. Green consenting to Mr. Harvey being added as a co-signatory. Mr. Harvey sent the required documents on November 25. He testified that he tried unsuccessfully to sign in to the system multiple times. He successfully accessed the account on December 21, 2021. Mr. Cao testified that Ms. Green did not finalize Mr. Harvey’s access to the account until mid to late-December.
7By the time Mr. Harvey was able to access the account online, Sirius had overdrawn its account beyond the $350,000 limit. One of the cheques was larger than $5,000 and signed only by Mr. Saidani. Mr. Cao emailed requesting the account be brought within credit limits. Mr. Harvey replied that a deposit would be made. Mr. Cao and Mr. Harvey had a meeting in March 2022, in which Mr. Harvey requested additional funds. Mr. Cao refused. Mr. Cao testified that at this meeting, for the first time, Mr. Harvey raised the length of time it had taken him to access the account online.
8At the motion, Mr. Harvey argued that BMO was negligent in allowing withdrawals to be made before his signing authority was set up and before he was able to access the account online. He argued that BMO’s alleged negligence undermined its ability to rely on the letter of agreement. Further, the guarantee was unenforceable due to BMO’s misrepresentation that he would have signing authority over all withdrawals in excess of $5,000.
Decision Below
9The motion judge found that BMO was not negligent for failing to immediately set up dual signatures and online account access to Mr. Harvey. Mr. Cao agreed to make Mr. Harvey a co-signor and set up access to the account but he did not make an agreement on behalf of BMO to deny credit facilities until these two steps were taken. There was no written confirmation of conditions on his signed guarantee. Mr. Cao stated that there was no way to change the language in the written guarantee and no acceptance of changed forms. Mr. Cao notified Mr. Harvey that the credit facility had been approved, and it was not suggested that Mr. Saidani was unable to access the credit facilities. The one-month delay in setting up online access was not negligent behaviour. Mr. Harvey did not establish that BMO agreed to deny Sirius access to any of the credit facilities until Mr. Harvey’s two requests were met. BMO therefore did not owe a duty to Mr. Harvey to ensure that the credit facilities were not being abused by Mr. Saidani.
10Mr. Harvey argued that the legal advice he received was not independent because Mr. Saidani found the lawyer he consulted with. The motion judge found that regardless, BMO was entitled to rely on the Certificate of Independent Legal Advice provided by Mr. Harvey.
Issues
11Mr. Harvey raises the following issues on appeal:
(1) Did the motion judge err in finding that the assurances given to Mr. Harvey did not constitute conditions precedent to the effectiveness and enforcement of the guarantee?
(2) Did the motion judge err in rejecting Mr. Harvey’s claims based on misrepresentation?
(3) Did the motion judge err in rejecting Mr. Harvey’s negligence claim based on the absence of a duty of care between the bank and Mr. Harvey?
12At the hearing of the appeal, the panel did not call on the respondent to address the first two grounds of appeal involving the conditions precedent to the guarantee and the claims based on misrepresentation. We only heard from the respondent on the third ground of appeal relating to negligence.
Analysis
1. The motion judge did not err in finding that the assurances provided to Mr. Harvey did not constitute a condition precedent for the guarantee
13The motion judge accepted that, on behalf of BMO, Mr. Cao agreed to Mr. Harvey’s request to make him a co-signor on the account, and also to provide him with online access to the account. However, she further found that Mr. Cao made no agreement on behalf of BMO that Sirius would be denied credit facilities until these two steps had taken place.
14The motion judge’s finding is a question of mixed fact and law entitled to deference. The question on appeal is whether it was open on the record to the motion judge to reach this finding. That record included the following evidence:
- There was no written document setting out any conditions to the guarantee.
- Mr. Harvey signed the guarantee with independent legal advice.
- The guarantee included an “entire agreement” clause confirming it superseded any prior agreements.
- The guarantee included a clause confirming that there were no conditions to the guarantee other than those conditions in the document.
- Mr. Harvey was aware the credit facility was available before he had access to the account and raised no complaint until March.
- Mr. Harvey received a cheque for $15,000 drawn on the credit account with only Mr. Saidani’s signature and again raised no complaint.
15Mr. Harvey argued that the motion judge failed to consider Mr. Cao’s inconsistent evidence regarding the conversation which included the key representations. Mr. Cao first denied the conversation took place, only later, on cross-examination, acknowledging the assurances were made.
16The motion judge accepted that Mr. Cao made the assurances alleged by Mr. Harvey. It was not necessary for her to elaborate on every aspect of Mr. Cao’s evidence in relation to those assurances.
17Further, Mr. Harvey argued that the motion judge failed to consider the importance of Schedule C to the guarantee, which set out: “Conditions Precedent to Advances… 2. Completion of all facility documentation and account agreement and authorities, as applicable”. Mr. Harvey submitted that the assurances provided by Mr. Cao were incorporated into the guarantee through Schedule C.
18The motion judge rejected that interpretation of Schedule C as the schedule refers only to documentation required by BMO, and not to any conditions that Mr. Harvey may have requested.
19In light of this record, it was open to the motion judge to conclude the assurances provided to Mr. Harvey did not constitute conditions precedent to the credit line being available to Sirius.
20We see no error in the motion judge’s analysis or conclusion.
2. The motion judge did not err in finding no basis for a claim in misrepresentation
21We further see no merit in the claims based on misrepresentation in light of the motion judge’s findings.
22Mr. Harvey argues that he would not have agreed to sign the guarantee but for the assurance that the safeguard of the dual signatures on cheques of more than $5,000 and online access to facilitate his monitoring of the credit line were in place.
23In light of the finding that Mr. Cao had not made a specific promise that credit line funds would not be released before the account protections were put in place, and that this promise needed to be included in the guarantee in order to bind the bank, there was no basis for claims in misrepresentation.
24Mr. Harvey’s arguments with respect to misrepresentation fail largely for the same reason the argument on condition precedent fails. Again, in this context, the motion judge’s findings to the contrary were open to her on the record and are entitled to deference.
3. The motion judge did not err in dismissing Mr. Harvey’s negligence claim
25With respect to negligence, the argument put to the motion judge was that it was negligent of the bank to allow the credit line to be accessed before the safeguards sought by Mr. Harvey were in place. This argument was simply another version of the argument that these safeguards were conditions precedent. The motion judge rejected Mr. Harvey’s claim in negligence. She explained, at para. 67:
BMO’s one month delay in setting up Mr. Harvey’s online access no doubt contributed to Mr. Harvey’s challenges in monitoring and controlling Mr. Saidani’s spending. However, this delay is not negligent behaviour on the part of BMO. Mr. Harvey has not established that BMO agreed to deny Sirius access to any of the credit facilities until Mr. Harvey’s two requests were met. BMO therefore did not owe Mr. Harvey a duty to ensure that the credit facilities given to Sirius were not abused by Mr. Saidani. BMO’s delay in providing Mr. Harvey online access and creating dual signatures for the account does not void Mr. Harvey’s guarantee.
26We see no error in the motion judge’s analysis or conclusion on negligence as Mr. Harvey framed the claim.
27Mr. Harvey presented a different theory of negligence before us that was not based on the assurances as a condition precedent for the guarantee. Instead, the negligence was alleged to flow from the one-month delay in setting up Mr. Harvey with online access and from the failure to monitor and ensure no cheques were used from the credit line without dual signatures. Mr. Harvey argued that this fell below the standard of care to which the bank should be held.
28This theory of liability was not part of Mr. Harvey’s pleadings, although Mr. Harvey noted that it was mentioned in passing as part of his closing submissions at the hearing of the motion. The motion judge did not mention this theory of negligence in her decision. Mr. Harvey’s Notice of Appeal refers to the motion judge’s error in rejecting the claim in negligence based on the condition precedent framing involving Mr. Cao’s assurances.
29The motion judge did not err by failing to address a theory of negligence which was not before her.
Disposition
30For these reasons, the appeal is dismissed.
31BMO is entitled to costs from Mr. Harvey, in the amount of $18,000, all inclusive.
“L. Sossin J.A.”
“P.J. Monahan J.A.”
“Osborne J.A.”