CITATION: Toronto-Dominion Bank v. Fibertech Pools Inc., 2011 ONSC 549
COURT FILE NO.: CV-10-0857
DATE: 2011-01-24
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: The Toronto-Dominion Bank v. Fibertech Pools Inc., Paul D. Perovich, also known as Paul D. Perovich Junior, and Jackie Perovich, also known as Jacqueline Perovich, also known as Jackie Catania, also known as Jacqueline Catania
BEFORE: Baltman J.
COUNSEL: B. Wilson, for The Toronto-Dominion Bank
No one appearing for the defendants
HEARD: January 14, 2011
E N D O R S E M E N T
[1] The plaintiff, Toronto-Dominion Bank (the "Bank"), moves for leave to appeal to the Divisional Court from an order dismissing the plaintiff's motion for summary judgment made by the motion judge on October 26, 2010.
[2] The motion for summary judgment dealt with the liability of the defendant, Fibertech Pools Inc, to the Bank under three credit facilities and the liability of the defendant, Jackie Perovich, for her guarantee of those credit facilities. The defendant, Paul Perovich, a guarantor, assigned into bankruptcy prior to the motion for summary judgment.
[3] The credit facilities included a $25,000 demand loan, a $15,000 line of credit, and a $173,548 loan made under the Canada Small Business Financing Act (the "CSBFA"). The CSBFA limits personal guarantees to 25% of the original principal amount of the CSBFA loan. Subsequently, the CSBFA loan was reduced to $103,548, which in turn reduced the guarantor's liability to $25,887, being 25% of $103,548.
[4] The Order of the motion judge states:
Defendant raises the possibility of a novation made in the dealings between the plaintiff and defendant and narrowly this may be supported by the affidavit material. Defendant is not today arguing insufficiency or improper ILA which from the materials filed would be a waste of time given her refusal to consent to the breach of solicitor-client privilege. The plaintiff may proceed to examine the solicitor in question on the consent of the defendant today that that may be done. There appears on the materials filed to be an issue for trial. Without prejudice to the plaintiff bringing this motion again on better materials that motion is dismissed. Costs reserved to trial judge or judge hearing further summary judgment motion.
[5] This motion is brought under rule 62.02(4)(a), which requires that the Bank establish that there are good reasons to doubt the correctness of the Order in question and the appeal involves matters of such importance to warrant the proposed appeal. The test is conjunctive.
[6] In this case, the Bank has satisfied the first prong but not the second. The issue of novation was not squarely before the court; at best, on the affidavit evidence Jackie established that the agreement had been amended. This would reduce but not eliminate her exposure. Nowhere in their affidavit material does she or Paul suggest that the Bank agreed to do anything more than reduce her exposure to 25% of $103,548. Therefore, at a minimum, the Bank had a solid - indeed irrefutable - claim for partial summary judgment against her for $25,887.
[7] However, despite the able argument by Mr. Wilson, I am not persuaded that this issue is of general importance within the meaning of rule 62.02. The jurisprudence is clear that "matters of importance" must be matters of importance to the development of the law and not just to the parties. Mr. Wilson submits that the motion judge's failure to grant partial summary judgment for an uncontested part of a debt claim is relevant generally to the administration of justice, because it defeats the goal under Rule 20 – particularly in its amended form – of weeding out costly, unmeritorious claims that drain public and judicial resources.
[8] In my view that reasoning is circular. I agree Rule 20 is designed to eliminate unmeritorious cases, but that is why, at least in part, the Bank succeeds under the first prong; Rule 20 makes it clear that the motion judge shall grant summary judgment where there is no genuine issue requiring a trial. In this case, there is good reason to believe the motion judge did not properly apply that rule. But that does not make the case one of general importance. Otherwise, any time a judge wrongly decides a Rule 20 motion, the losing party would have an automatic right of appeal. That, in turn, would not only eliminate any distinction between the two prerequisites for leave to appeal but invite appeals that have no relevance beyond the immediate parties, and thereby – ironically – increase rather than minimize litigation. To the extent the decisions of Parker v. Casalese, 2010 ONSC 2866, and Canadian Imperial Bank of Commerce v. Prasad, 2010 ONSC 320, say otherwise, I respectfully disagree. I note that in the latter case the defendant filed no evidence on the motion, and the motion judge dismissed the motion on grounds not even raised by the defendant.
[9] For those reasons the motion is dismissed.
Baltman J.
DATE: January 24, 2011
CITATION: Toronto-Dominion Bank v. Fibertech Pools Inc., 2011 ONSC 549
COURT FILE NO.: CV-10-0857
DATE: 2011-01-24
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: The Toronto-Dominion Bank v. Fibertech Pools Inc., Paul D. Perovich, also known as Paul D. Perovich Junior, and Jackie Perovich, also known as Jacqueline Perovich, also known as Jackie Catania, also known as Jacqueline Catania
BEFORE: Baltman J.
COUNSEL: B. Wilson, for The Toronto-Dominion Bank
No one appearing for the defendants
HEARD: January 14, 2011
ENDORSEMENT
Baltman J.
DATE: January 24, 2011