Court and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20200221 DOCKET: C67192
Simmons, van Rensburg and Harvison Young JJ.A.
BETWEEN
Robert Van Nispen and Donna Van Nispen Plaintiffs/Defendants by Counterclaim (Respondents)
and
McCarron & Chobotiuk Financial Services Inc. Defendant/Plaintiff by Counterclaim (Appellant)
Counsel: Steven Sands, for the appellant Lawrence Hansen, for the respondents
Heard: February 18, 2020
On appeal from the order of Justice Annette Casullo of the Superior Court of Justice, dated June 12, 2019 with reasons reported at 2019 ONSC 3658.
Appeal Book Endorsement
[1] The appellant appeals a summary judgment granting judgment on two promissory notes and dismissing its counterclaim.
[2] As a starting point, we see no error in the motion judge’s discretionary decision refusing leave to the appellant under r. 39.02 to deliver a further affidavit following cross-examination of one of the respondents. The affidavit is not before us and was apparently not filed in the court below. In any event, the affidavit was proffered only on the second day of the motion and after the moving parties’ counsel had completed his submissions. The motion judge observed that the information sought to be introduced did not stem from an issue first raised on cross-examination. She also found admitting the affidavit would be unfair. There is no basis to interfere with this exercise of her discretion.
[3] We agree with the motion judge that the evidence on the motion did not raise a genuine issue requiring a trial concerning the promissory notes or the counterclaim. The respondents led evidence denying they had diverted clients away from the appellant. As the motion judge found, the appellant’s assertions to the contrary were bald and unsubstantiated. Promises of better evidence at trial do not defeat a motion for summary judgment.
[4] The proposed fresh evidence does not meet the test for its admission. The substance of it was available or could have been obtained prior to the motion. Packaging it in a post-motion email to Sun Life does not change that reality.
[5] The appeal is therefore dismissed.
[6] Costs of the appeal are to the respondents on a partial indemnity scale inclusive of disbursements and HST fixed in the amount of $8,000.
