DATE: 20000828
DOCKET: C33736
COURT OF APPEAL FOR ONTARIO
RE: ROYAL BANK OF CANADA (Plaintiff/Respondent) -and- 951911 ONTARIO LIMITED c.o.b. as THE BREW-IT STORE and EDMUND BURKE (Defendants/Appellant)
BEFORE: MCMURTRY C.J.O., BORINS AND FELDMAN JJ.A.
COUNSEL: M.M. Steidman, Q.C., for the appellant
N. Marconi for the respondent
HEARD: August 16, 2000
On appeal from the judgment of Justice Susan E. Greer, dated February 4, 2000.
E N D O R S E M E N T
[1] Although the motions judge was inaccurate in her characterization of the original loan transaction with Mr. Burke as including a guarantee, we see no error in her conclusion on the record before her that there was consideration for the guarantee, as recited in the guarantee. The consideration was the provision of the loan to the numbered company which Mr. Burke had formed to carry on the business formerly carried on by him as a sole proprietorship. We therefore find no merit in the appeal as to liability.
[2] The Bank is not required to realize on the security before demanding payment, as the motions judge found. The appellant pleads in the Statement of Defence that the Bank left the assets to the landlord. It was entitled to do so.
[3] The appeal is therefore dismissed with costs.
“R. McMurtry C.J.O.”
“S. Borins J.A.”
“K. Feldman J.A.”