Court of Appeal for Ontario

Date: 20240129 Docket: COA-23-CV-0588

Before: MacPherson, Miller and Paciocco JJ.A.

Between:

Dr. Gillian Stanley Plaintiff/Moving Party (Respondent)

And:

Fabrizio Lucchese*, Fabco Holdings Inc., 2501500 Ontario Inc., Jaymor Securities Ltd., N. Dwayne Gray Jr. a.k.a. Dwayne Gray, and Zimmerman, Kiser & Sutcliffe, P.A. Defendants/Respondents (Appellant*)

Counsel: Yonatan Lipetz, for the appellant Jayson W. Thomas and Claire Copland, for the respondent

Heard and released orally: January 26, 2024

On appeal from the judgment of Justice Catriona Verner of the Superior Court of Justice, dated August 4, 2021.

Reasons for Decision

[1] In 2018, the respondent advanced a loan of $1.8 million to four corporate entities controlled by the appellant. The appellant provided the respondent with a personal guarantee.

[2] The loan was not repaid when it came due in 2019. The respondent commenced an action against the corporate entities for the debt and against the appellant on the guarantee. The motion judge found there was no genuine issue for trial and ordered summary judgment on the guarantee.

[3] The appellant argues that the motion judge erred by granting partial summary judgment on the guarantee by not considering the three inquiries this court proposed in Malik v. Attia, 2020 ONCA 787, 29 R.P.R. (6th) 215.

[4] We do not agree that the motion judge erred. She considered all relevant factors canvassed in Malik and was under no obligation to specifically refer to the case by name.

[5] It was apparent to the motion judge on the record before her that partial summary judgment would result: (1) in a costs savings, at least for the respondent; (2) resolve a significant discrete issue; and (3) do so without risk of inconsistent findings.

[6] The appellant argues that the motion judge erred by requiring he prove there was a risk of inconsistent findings. The corporate defendants were controlled by the appellant. The motion judge noted that it was not obvious how, in such a circumstance, there could be a risk of inconsistent positions being taken. She noted, in passing, that if the appellant wanted to make an argument that appeared unsupportable, evidence would be needed in support. This was just a matter of noting that the appellant had a case to meet and did not meet it.

Disposition

[7] The appeal is dismissed. Costs are awarded to the respondent in the amount of $12,000, all inclusive, as agreed by the parties.

“J.C. MacPherson J.A.”

“B.W. Miller J.A.”

“David M. Paciocco J.A.”